Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Must a dress code be part of a teacher’s contract? Here is my issue:
When the weather warms up, our school nurse starts to see an increase in scrapes and bruises due to falls on the playground that are attributed to students running while wearing flip-flops. I send several reminders to parents each spring to discourage flip-flops at school.
I have also told my staff that flip-flops are not acceptable footwear for work. I expect that staff members be good role models of appropriate footwear for students. Recently, I was approached by the teacher union representative, who stated that there was a complaint from staff members who want to wear flip-flops to school. I was told that if I want to have a dress code, it needs to be negotiated in the next contract.
If we have a dress code as part of our staff handbook, does it need to be negotiated into the contract as well?
Dressed for Success
As is often the case, the claim made by the teacher union representative has some merit, but he overstates the case. Our State Board of Labor Relations has long held that (1) a dress code is a “condition of employment,” and, as such, relates to a mandatory subject of negotiations, and (2) a unilateral change in a condition of employment (i.e., a change made without prior negotiation), including requirements for employee dress, is an unfair labor practice. See, e.g., Enfield Board of Education, Decision No. 1609 (Conn. St. Bd. Lab. Rel. 1978); State of Connecticut, Department of Motor Vehicles, Decision No. 3806 (Conn. St. Bd. Lab. Rel. 2001). With these rules in mind, Legal Mailbag has more questions for you than answers.
First, are you changing your expectations for teacher dress? You state that you “have told . . . staff that flip-flops are not acceptable footwear for work.” So far, so good. But was your opinion that flip-flops are not acceptable an enforced rule or simply your view on the matter? If it was an enforced rule, continuing to enforce the rule by prohibiting teachers from wearing flip-flops would not be a change in working conditions, and thus the district would have no duty to negotiate about the rule. Conversely, if you now want to change the practice and adopt a prohibition against flip-flops as a binding rule, you are proposing a change in working conditions, and the school district would be required to negotiate over that change.
Second, Legal Mailbag notes your comment that the school district has “a dress code as part of our staff handbook,” which invites further questions. What does the published dress code say, and has it been enforced? The focus for the State Board of Labor Relations is always on what the practice has been and whether it has been changed, not what is written in a handbook. For example, in one case, the employer changed expectations for employee dress without negotiations, and when challenged, it relied on a published dress code to claim that it had not changed working conditions. However, the State Board of Labor Relations disagreed, stating, “The existence of a dress code in the City’s Personnel Procedures does not make the dress code an established condition of employment where the dress code has not been enforced for many years.” City of Bristol, Decision No. 2429 (Conn. St. Bd. Lab. Rel. 1985). Applying this rule, Legal Mailbag must advise you that the dress code in the staff handbook is relevant to this discussion only if it prohibits flip-flops and has been enforced.
Even if we conclude that the district must negotiate over a new rule prohibiting teachers from wearing flip-flops, the teacher union representative has overstated the case. Legal Mailbag understands that the union representative has claimed that this proposed new rule “needs to be negotiated in the next contract.” However, absent a contract provision that controls the situation (which perforce would be addressed in the next contract negotiation), employers are free to propose a change in working conditions and invite the union to agree with the change or to negotiate over it. There is no need to wait for the next round of successor contract negotiations.
Finally, any such negotiations with the teachers’ union would be controlled by Conn. Gen. Stat. § 10-153f(e), which governs negotiations during a contract term (“mid-term negotiations”). If the teachers’ union wants to go to the trouble of negotiating over the right to wear flip-flops to work, it can do so by demanding to negotiate over the proposed rule change. If it does, the statute requires that the parties notify the Commissioner of Education within five days of commencing negotiations, and the Commissioner will then establish a timeline for resolving the negotiations, including a period of twenty-five days for negotiation, twenty-five days for mediation, after which binding arbitration is imposed if the parties are still at impasse.
How far to push this issue is a question for both parties, of course. In Legal Mailbag’s not-so-humble opinion, the teachers and their union have a losing argument in claiming that they should continue to have the right to wear flip-flops to work, given the legitimate concerns that you have expressed. The question here thus appears not to be whether the district can prohibit teachers from wearing flip-flops to work, but rather when and how it may do so. We may hope that, by acknowledging that this change must be negotiated, the district will promptly convince the teachers that they should not wear flip-flops to school.