Curing Summertime Employment Blues: Dress Codes, Minors, Wage and Hour Issues

July 27, 2017

With the arrival of summertime in Wisconsin, employers face unique challenges as well as opportunities. Dress code infractions are more common during warmer months (recall that Wisconsin mandates that employers notify employees of dress code requirements at the time of hire).

At the conclusion of the school year, many employers hire minors for the summer. Special rules apply to child labor, including work permit and parental consent laws (which may change shortly for 16- and 17-year-olds). Also, Wisconsin and federal law permit employers to pay a lower minimum wage to employees under 20 during their initial 90 calendar days of employment. Finally, federal and state law exempts seasonal amusement and recreational establishments from overtime and minimum wage requirements.

Appearance and Dress Code Issues

With the arrival of warm weather comes employees’ summer wardrobes. That may mean open-toed shoes, shorts, shorter dresses and skirts, and sleeveless tops. Summer attire issues generally provide challenges for HR personnel and office managers who strive to maintain a professional work environment. Let’s discuss some of the key grooming and appearance issues that arise as temperatures go up.

Wisconsin law mandates that employers notify all employees about any hairstyle, facial hair, or clothing requirements. Notification must occur at the time of hire. If an employer puts in place such a requirement after an employee is hired, it should provide notification at the time the requirement takes effect. Although written notice is not required under Wisconsin law, the best practice is to include grooming and appearance requirements in your policy manual or employee handbook and to have all employees sign an acknowledgment that they have received the handbook and have had an opportunity to review it. If you make any modifications to your grooming or appearance policies, be certain to provide notice to all employees prior to enforcing the amended policies.

Some municipalities in Wisconsin have equal employment opportunity ordinances that include similar notice requirements or provide additional substantive protections for employees. For example, the Madison Equal Employment Opportunity Ordinance prohibits discrimination based on physical appearance. Physical appearance may include hairstyles, dress, and jewelry, including facial jewelry such as eyebrow rings. It may also include tattoos. For example, if your dress code prohibits clothing that allows tattoos to be observable and an employee’s sleeveless top allows her shoulder tattoo to be visible, check with the appropriate government agency or legal counsel before enforcing that portion of your policy.

Gender discrimination issues can also arise in enforcing grooming policies. For example, if women are prohibited from wearing skirts or skorts that are shorter than a few inches above the knee and men are permitted to wear shorts with no length requirement, you may be asking for trouble. Similarly, if women are prohibited from wearing tank tops, the rule should apply equally to men. Generally, it’s a good idea to keep provisions in your dress code as gender-neutral as possible. Also, since some municipalities have appearance discrimination prohibitions in their ordinances, it is best to have business justifications for grooming and dress requirements. While cases involving customer preferences as a business justification have gone both ways, reasons related to safety and health are routinely upheld.

Discrimination and Harassment of Minors

School is out, and students are filling some of their time working summer jobs. While there are special rules for employing minors, be aware that federal, state, and local laws addressing discrimination, retaliation, and harassment apply equally to minors and adult employees. Agencies like the Equal Employment Opportunity Commission (EEOC) are particularly sensitive to employer conduct toward new, younger employees. Recall that a couple of years ago, the EEOC made preventing workplace harassment of young employees a strategic priority. The EEOC found that new, inexperienced, and young employees are more likely to be targets of harassment and other forms of discrimination and that those employees are less likely to know how to appropriately respond to or complain about harassment or discrimination.

Although preventing sexual harassment of young, first-time employees is no longer a specific strategic priority of the EEOC, the agency’s Strategic Enforcement Plan (SEP) for fiscal years 2017-2021 makes clear that the EEOC has retained its focus on protecting young employees. Protecting “vulnerable” employees remains one of the EEOC’s specific priorities. Although that priority focuses on immigrant and migrant workers, the SEP specifically notes that it addresses workers who may lack an awareness of their legal protections and employees who may be reluctant or unable to exercise their rights.

The SEP specifically notes that employees who lack work experience are particularly vulnerable to discriminatory practices and policies. It is fair to expect the EEOC to continue to treat workplace discrimination and harassment of minors as a priority. This is a good time to remind all managerial and supervisory employees that discrimination and harassment are prohibited in the workplace. Retaliating against an employee who raises concerns about discrimination or harassment by taking or threatening to take an employment action is also prohibited.

Minimum Wage for Young Workers

Federal and Wisconsin law permit employers to pay employees under 20 years old less than the minimum wage during the first 90 calendar days of their employment. Those employees are called “opportunity employees.” The federal opportunity employee minimum wage is $4.25 per hour, and the Wisconsin minimum wage for opportunity employees is $5.90 per hour. Wisconsin employers must pay the higher opportunity employee minimum wage—i.e., $5.90 per hour.

The 90-calendar-day period begins on an employee’s first day of work and concludes 90 calendar days later, regardless of how many days the employee worked during the period. The lower minimum wage applies only during the initial period of the employee’s employment. Therefore, if an employee worked for you last summer, you cannot pay him the lower minimum wage if he returns to your company this summer. After an employee turns 20, the lower minimum wage ends, even if he is still in the 90-calendar-day window. An employee can be an opportunity employee for you even if he was an opportunity employee for one or more employers prior to working for you. The law prohibits employers from terminating an employee in order to fill a position with an opportunity employee.

Other Wage and Hour Issues

In addition to the opportunity employee minimum wage, summertime in Wisconsin often raises questions about the seasonal amusement and recreational establishment exemption from overtime and minimum wage obligations. Amusement and recreational establishments are defined as (1) establishments that do not operate more than seven months in a calendar year or (2) establishments whose average receipts for any six months of the preceding calendar year were not more than one-third of their average receipts for the other six months of the year. For example, if you are in the business of renting kayaks or bicycles for the six-month period between May 1 and October 31, your employees may be exempt from federal and state overtime and minimum wage requirements.

The exemption does not cover establishments whose main function is sales. For example, if your company is a bike shop and otherwise meets the exemption’s requirements, the exemption will not apply to your company because it primarily sells or repairs bicycles, even though it may also rent bicycles to the public. Contact legal counsel if you believe the exemption may be available to you.

Wisconsin Child Labor Laws

Wisconsin has a set of laws and regulations governing child labor, but a detailed discussion of those laws and regulations is beyond the scope of this article. The requirements include work permits for minors and parental consent. However, as you may know, the Wisconsin Legislature has voted to eliminate both requirements for 16- and 17-year-olds and the bill has been signed into law by the governor. We will keep you apprised of the status of the law.

Bottom Line

Summertime brings unique challenges and opportunities for employers, including dress code, child labor, and wage and hour issues. Additionally, many employers sponsor summer social activities such as company picnics. The same rules that apply at company holiday parties where alcohol is served apply to employer sponsored picnics and other social activities.

This article, slightly modified to note recent updates, was featured in the July 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Curing Summertime Employment Blues: Dress Codes, Minors, Wage and Hour Issues," contact Michael J. Modl at mmodl@axley.com or 608.283.6702.