When most of us enter the workplace, we have little control over our circumstances and our daily activities, workload and space constraints are dictated to us by the boss. This lack of control combined with cost-cutting pressures in the economy in general force most employees (even naturally tidy ones) to spend little time on organization or cleaning in general. It is often all we can do to just get our work done.
Yet our natural dispositions toward cleanliness follow us into the workplace. People with a greater tolerance for mess and disorganization don’t care if there is a biohazard in the office microwave or fridge or when the supply room looks like the damage path of a tornado. People who are neat freaks might keep their own desk tidy but feel overwhelmed and stressed when others fail to keep the same standards. The office environment forces us all to work together and reconcile all these different views into a general office standard.
Disagreements about cleaning standards are not uncommon in today’s offices. While most often, these disputes are resolved quickly and without too much fuss, there have been situations where differences over cleaning standards escalates into severe disagreements, including lawsuits!
Today’s post looks at the pitfalls of imposing cleaning standards at the office with a few lessons on what not to do!
Disclaimer: The text below is for information only and is not legal advice. Please consult your lawyer for advice on your specific situation.
For the boss:
1. Don’t stereotype employee’s cleaning abilities.
It is easy to make quick assumptions about people’s cleaning capabilities but these assumptions are not always accurate or fair. A cleaning standard is a cleaning standard regardless of who is required to follow it and should be imposed with neutral language. Forgetting this neutrality is expensive as shown by the case below.
“First, Hernandez testified that he overheard Flores, the district manager who terminated Hernandez’s employment, state that a female would keep the store cleaner and better organized. . . . Sixth, the record contains a separation notice in which Flores writes that the failure to maintain ‘a clean and organized office and facility’ was a basis for termination. . . .
The jury found that gender was a ‘motivating factor’ in Coastal’s decision to terminate Hernandez and awarded $ 135,000.00 in compensatory damages. The trial court reduced this figure to $ 128,000.00 and awarded $ 41,088.64 in prejudgment interest, and $ 32,535.25 in attorney’s fees.
[Judgment affirmed]
Coastal Mart v. Hernandez, 76 S.W.3d 691 (Tex. App.-Corpus Christi 2002)
2. Don’t assume you can include cleaning duties in a particular position, even if cleaning duties are necessary or common in the industry.
While most employers have the luxury to define job requirements in any way they desire, there are certain circumstances where the law forbids cleaning!
“Ralph explained that the Academy had a 1,250 hour cosmetology curriculum, and students were awarded credit hours within the 1,250 hours for cleaning the school’s restrooms. She stated that the students were required to periodically perform ‘duty work’ which included cleaning the school’s toilets, sweeping floors and removing the trash. She further stated that the ‘duty work’ assignments were split up among 15 students with each student spending about five to ten minutes per day performing ‘duty work,’ but toilet cleaning was only assigned approximately twice per month. Ralph added that cleaning restrooms was part of the curriculum because that is what the students would be expected to do once they became licensed cosmetologists. She explained that she had owned over 50 salons in the past 18 years, and that in each of those salons, it had been common practice to have the toilets cleaned by the licensed cosmetologists. Over the objection of opposing counsel, Ralph offered into evidence copies of pages from various cosmetology textbooks providing sanitation guidelines which included cleaning restrooms and toilets. . .
Restroom/toilet cleaning is an essential function in operating a salon or any business be it a physician, attorney or real estate office. Although it may be the practice of some salons to have cosmetologist employees clean the salon restrooms, the Board regulation at 49 Pa. Code § 7.123 specifically forbids schools from requiring students to perform janitorial work. Cosmetology students are not salon or school employees and should not be used to clean school restrooms. . .
Because cleaning toilets is a janitorial task, the Board did not err in imposing sanctions against Ralph and the Academy . . . .
Ralph v. State Board of Cosmetology, 822 A.2d 131 (Pa Cmwlth 2003)
3. Be careful making cleanliness judgments when it comes to employees with chronic, infectious diseases.
Probably one of the most difficult situations an employer faces with regard to cleanliness is handling the sensitive situation when an employee has a chronic and potentially contagious disease. In this situation, it is best for both the employee and the employer to get educated from an authoritative health source about the risks of infection and the steps needed to keep other employees and customers safe. Sadly, infected persons still face significant discrimination as shown in the case below.
“Edwards has been diagnosed with hepatitis C, a viral disease that is transmitted by blood-to-blood contact. Edwards began regular medical treatment in 2000 and by January 2001 there was no detectable amount of the hepatitis C virus in her blood, although according to her physician she will always have chronic hepatitis. . . .
On August 13, 2001, Edwards applied for a job at York Manor Nursing Center, a nursing home in Muskogee, Oklahoma. . . . She was subsequently hired as a ‘dietary aide’ and eventually became a cook for the York Manor residents and employees.
York Manor first learned that Edwards had hepatitis on April 1, 2002. That day, Edwards accidentally cut her hand at work. . . Two days later, Raines called Edwards and informed her that she would not be allowed to return to work without a doctor’s permission. Edwards promptly asked her doctor for a letter clearing her to return to work; he mailed her such a letter . . . that evening, before Edwards had a chance to bring the letter to York Manor, Edwards’s kitchen supervisor called to tell her that she was fired. . . .
An EEOC investigator recorded that when he called Townsend to discuss Edwards’s complaint, Townsend responded by asking: ‘How would you like to eat food containing her blood, if she ever cut her finger?’ The investigator also reported that Townsend ‘stated that if this got out to their clients they[] would have a mass exodus from their nursing home.’ . . .
The case was then submitted to the jury, which found ‘by a preponderance of the evidence that Heartway discriminated against Janet Edwards due to perceived disability.’ The jury awarded Edwards $ 20,000 in compensatory damages and recommended an award of back pay, which the district court awarded in the amount of $ 1,240.”
Interestingly, however, the appeals court seems a bit sympathetic to the employer in this case, noting:
“[I]t is not a violation of the [Americans with Disabilities Act] to terminate someone simply because they have been diagnosed with hepatitis. The hepatitis must also limit a major life activity (or be perceived as limiting a major life activity) . . .
Therefore, we conclude that the district court erred in granted Heartway judgment as a matter of law on the issue of punitive damages. . . . Our above conclusion requires that we remand for a new trial, solely on the issue of punitive damages.”
EEOC v. Heartway, 466 F.3d 1156 (10th Cir. 2006).
For the employee:
1. Remember the bigger picture and don’t assume your boss’s cleaning demands will be perceived as unreasonable.
If cleaning is anywhere in your job description, you may have a boss with an insatiable need for cleaning. And, unfortunately, you are likely to face the cleaning bias in that few people are willing to stand up for uncleanliness while most people will readily agree that more cleaning is better. Your best bet in this situation is to ask your supervisor to articulate exactly what the cleaning requirements are and make it your mission to figure out how to achieve them. If you are in an impossible situation where you don’t have the time or resources to achieve the expectations and your boss is unsympathetic, it may be time to look for another job.
“On 29 December 1997, respondent notified petitioner of his demotion to the position of correctional officer. The notice set forth several grounds for the disciplinary action, including (1) petitioner’s failure to maintain a properly balanced serving line; (2) tardy delivery of food; (3) unsanitary conditions in the kitchen; (4) substitution of menu items without approval; and (5) failure to ensure that dishware was properly cleaned before distribution to the inmates. . . .
Petitioner acknowledged at the hearing that he did not think he could ever clean the kitchen to the satisfaction of Mr. Creecy. Petitioner had received a written warning on May 1, 1997, for among other things, unsanitary conditions in the kitchen. . . .
Pasquotank Correctional Institution is a high security prison housing many of North Carolina’s most dangerous felons. At any given time, up to 250 inmates can be in the dining hall at once. It is therefore essential that all kitchen functions perform in an orderly fashion. Even seemingly innocuous incidents such as switching items on the menu and having an imbalanced serving line can cause a security risk. . . .
After conducting our de novo review, we conclude that respondent had just cause to demote petitioner for unsatisfactory job performance.”
Skinner v. North Carolina Dept of Corrections, 572 S.E.2d 184 (N.C. Ct. App. 2002).
2. Discriminatory or inappropriate comments or actions from your employer don’t always excuse you from your cleaning duties.
There are a surprising number of cases where employees experienced highly offensive comments and hostile work situations yet the court did not find that this alone excused the employees from performing their regular job duties. Sometimes the courts seem more focused on the failure of the employee rather than the liability of the employer for inappropriate managers.
“Windfelder claims Kaufmann’s began to discriminate against him on the basis of his age in May 1997, after Rick Bennet became President of Kaufmann’s. During an unannounced walk-through of the Pittsburgh store on May 23, 1997, Bennet remarked to Windfelder, ‘it’s good to see someone around here with less hair than me.’ Bennet then saw a sock display that was in disarray, learned that Windfelder had 25 years of service, and allegedly remarked, ’25 years and you let a table of socks look like that.’ . . .
This review was based on the following performance issues, many of which Windfelder does not dispute: sock and towel displays table not up to visual and presentation standards; failure to mark shoes down to sale prices in a timely manner; messy ‘wrap and pack’ area near the crystal area; failure to hold his staff accountable for maintaining the store; Ruby Selling Star Board in disrepair; and lack of effective communication with employees. . . .
In October 1998, McGowan performed a walk-through of the downtown store. As Windfelder accompanied him and limped due to a leg injury, McGowan allegedly said to him, ‘Hey, you’re getting too old for this.’
The record provides ample testimonial and documentary evidence of Windfelder’s marginal or dissatisfactory job performance. . . . Windfelder did not establish a prima facie case for retaliation, and the District Court properly granted Kaufmann’s motion for summary judgment.
Windfelder v. May Department Stores, 93 Fed. Appx. 351 (3d Cir. 2004).
3. Sometimes form is more important than substance.
This last point is the hardest for employees to swallow. When you devote so much of your time to your job that it becomes a part of your identity, the last thing you want to hear is that your employer really doesn’t care about the substance of what you are doing and instead is focused on minutiae like cleaning tasks. We all want to feel valued beyond our actual job description. Below is an interesting case where even being a top seller for a company did not overshadow other concerns, including cleaning concerns, about two employees.
“Wright worked for Sears for 25 years, starting in 1973 until his termination in November 1998. He was promoted to store general manager in 1989 and held that position until his termination. Prior to the arrival of Ron Ford as the district general manager in mid-1997, Wright had never received a ‘performance plan for improvement.’ Ford issued the plan to Wright in February 1998, based on visits to Wright’s store, comments from store staff and communications with district and regional staff that had visited the store. The “performance plan” cited concerns about poor housekeeping and inadequate merchandise displays. In May 1998, Wright received his annual performance review, which concluded that Wright was either not meeting or only partially meeting expectations in the rated areas. Ford particularly stressed to Wright that Wright’s leadership skills were lacking and were a primary cause of the low ratings. Wright disputed these ratings because he was meeting expected numeric goals as to growth and profits for his store and therefore, based on these figures alone, believed he warranted higher ratings under Sears’ rating system. It is undisputed that Wright’s store profits were among the highest in the district. . . .
At the end of October 1998, Ford issued a second ‘performance plan’ to Wright, stating that Wright had not improved upon those areas identified in the first plan and he would be terminated in 30 days if he failed to improve. The performance plan stated that Wright still was not keeping the store neat enough and merchandise presentation was below standard. . . .
Shields explained that Sears has been undergoing a ‘culture change’ for at least a decade and store managers are now taught to work on their leadership skills and not worry about the ‘numbers’ because Sears believes that the numbers will fall into place if the leadership skills are present. . .
Martin began working for Sears in 1970 and became a store general manager in Columbia, Tennessee, in 1989, where he remained until his termination in 1999. Prior to 1997, Martin had never received any written warnings about his performance at Sears. Martin received his first performance plan from Ford in February 1998. The performance plan cited lack of leadership, housekeeping problems and lack of communication with store and district staff. . . .
The record amply demonstrates Sears’ defense that it had a legitimate, nondiscrirninatory reason for terminating Martin as well. For example, Teresa Byrd, the regional vice-president, visited the Columbia store in November 1997 and stated that she was distressed with the overall look of the store, regarded it as below Sears’ standards and told Martin that ‘she didn’t want to see the store like that again.’ . . .
Plaintiffs claim that this disparity in their ‘subjective v. objective’ ratings creates conflicting ‘facts’ about their performance that put Sears’ credibility at issue, requiring a jury trial. However, meeting or even exceeding certain minimum requirements or baseline standards set by the company will not guarantee that an employee, especially a manager, is achieving the overall goals of the company. This is the prerogative of the company. The federal courts do not sit to assess the general fairness of an employer’s treatment of long-time employees, but only to apply statutory standards.
Wright v. Sears, 81 Fed. Appx. 37 (6th Cir. 2003)
Have you experienced cleaning conflicts in the workplace? What lessons have you learned? Please share in the comments.
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