Q & A

From Colorado

Question: It is my understanding that, under Federal law, employers are required to cover all affected employees under any existing collective bargaining agreement, regardless of membership in the union. Does this also apply to public employers? We have “agency shop” language in our contract. The issue is whether or not employees who decline me.

Answer: This issue is purely a matter of local law. In some jurisdictions, unions have a duty of fair representation to represent even non-members, without regard to whether the non-members pay a “fair share” or “agency fee” to the union in lieu of dues. In other states, the union has no representation obligation to non-members. You need to check with a local lawyer on this.

From Kansas

Question: Our department has recently implemented a tattoo policy that will (1) prevent you from getting any additional visible tattoos (we are ok with this part); (2) require you to declare all tattoos on your body (they are giving us a drawing of a human body to label each tattoo); (3) prevent you from getting any “offensive” tattoos, visible or non-visible. I am concerned that (2) and (3) violate the personal rights of our membership.

I have seen that more restrictive tattoo policies are moving across the country but I haven’t seen any restricting non-visible tattoos or making employees declare non-visible tattoos. Is there a court ruling or any sort of case law?

Answer: As you might imagine, there’s been a fair amount of litigation over tattoo policies in public safety agencies. The litigation has occurred in two areas, with vastly different results.
Some of the litigation concerns constitutional challenges to tattoo policies. Some of these challenges have been on a free speech basis; others on the basis of the right to privacy. To the best of our knowledge, all such challenges have failed. That said, we’ve never seen a policy that attempts to regulate non-visible tattoos, much less one that requires employees to “declare” where such tattoos are. We think such a policy would be vulnerable to an attack on constitutional privacy grounds.

Employees have had more success challenging tattoo policies on the grounds that they are mandatory for collective bargaining. We know of two law enforcement cases – one from Oklahoma and the other from Maryland – finding that an employer could not unilaterally implement a change in a tattoo policy, and would be required to collectively bargain over any such changes.

This article appears in the June 2009 issue