When I examine employee handbooks as part of my legal review of such documents, a frequently seen policy involves dress codes and the inclusion of possible employee sanctions for not following such a policy. Most policies I review inform employees that if they fail to follow the dress code they will be sent home and not be paid for the time it takes them to return to work. Are such policies legal? The answer may surprise you.
As such policies apply to non-exempt hourly employees, not paying for the time spent away from work while bringing their attire in line with company policies is indeed a legally appropriate sanction. Why? Because by their very status, hourly non-exempt employees get paid for only actual time worked. Thus, if a Company wants to dock the offending employee wages as a sanction for violating a dress code policy, there is no violation of wage and hour laws: the employee simply clocks out and clocks back in when returning in the proper work attire and does not get paid for the time he/she is not working.
On the other hand, for exempt employees, these same rules do not apply. Exempt employees get paid a weekly or bi-weekly salary, and so long as the employee performs services at any juncture of the work day the employee is entitled to be paid the daily portion of his salary for that day. So, if the exempt employee is found to have violated a dress code policy after already performing work on a particular day, the employee must be paid that entire day’s salary even if sent home and told to return in suitable clothing.
Moreover, be aware that there are very strict rules for deducting any monies from the salary of an exempt employee, and the allowable grounds for making such deductions typically involve the violation of serious workplace rules. Now, here is another legal catch-even if the employer has grounds for sanctioning an exempt employee by withholding a portion of his/her salary as punishment, any deduction that is for less than a full day’s pay is illegal. Thus, in our hypothetical, not only would a deduction from pay not be warranted because dress code violations are usually not serious enough to meet wage and hour requirements, but deducting pay for only the brief time out of work to correct the problem also does not satisfy the full day deduction rule. Thus, while even exempt employees can be sanctioned for violating dress codes, docking pay is not going to be one of those options in most situations.
As this example shows, sometimes wage and hour rules can create unexpected traps that an employer can easily fall into, and not realize there has been a legal violation. Thus, anytime your business is thinking about making disciplinary deductions from pay, make sure you consult with an experienced employment lawyer first to avoid such unexpected wage and hour pitfalls.
