By Jim Cline
The recent ruling of the federal Third Circuit Court of Appeals (Scavone v. Pennsylvania State Police), governing preemployment tattoo policies, addresses some interesting issues and is explained in a recent blog article. Our readers should be aware, that these issues are not controlling, or in any way dispositive of employers separate obligations under collective bargaining laws.
In Scavone, the court rejected a lawsuit brought by a disappointed liquor enforcement agent applicant who was rejected after he declined to remove existing tattoos. The Pennsylvania State Police have adopted a preemployment hiring standard barring applicants with existing tattoos. The court rejected Scavone’s arguments that this violated various constitutional rights.
We have seen a few occasions, in which the negotiability of tattoo policies has arisen, but PERC has yet to provide clear guidance on whether this is, or is not a mandatory subject of bargaining. In our estimation, it probably will be found to be a mandatory subject of bargaining at least when it involves a requirement for existing employees to remove tattoos, or, as is more typically the case, conceal them.
A policy simply requiring concealment, by definition, actually does not mandate that employees undertake painful or expensive removal processes, but does typically involve an alteration of the uniform — for example, prohibiting short-sleeve shirts, even during warm summer months.
The issue for PERC, would be whether that mandated uniform alteration involves a “management right” to define the uniforms, or involves a “working condition” concerning apparel under different weather extremes.
It should also be noted that the policy at issue in Pennsylvania would actually be outside the scope of bargaining. PERC only mandates that employers bargain working condition policies affecting existing employees. Policies applicable only on a preemployment basis are outside the scope of bargaining. Nonetheless, preemployment hiring conditions can become negotiable when they are applied on a postemployment basis as PERC has explained, for example, in Kitsap County Fire District No. 7 and in City of Pasco.
