'The policy is not being consistently applied': labour law academic explains best practices for rolling out dress codes and policy changes in union environments
When Starbucks recently introduced a new dress code for employees at more than 120 U.S. stores, it triggered a coordinated strike by more than 2,000 baristas, and the issue quickly became a flashpoint in a much broader labour dispute that had already been simmering for over a year.
Canadian employers can draw important lessons from the dispute south of the border on how to introduce sweeping policy changes in unionized environments with minimal legal risk, according to Bruce Curran, associate professor of labour and employment law at the University of Manitoba.
“Oftentimes, these debates and strikes are not strictly speaking about the presenting attempt at a policy. It can be much broader,” he says, noting that such disputes often reflect long-standing tensions.
Importance of consistency and perceived fairness
Curran explains that in the Starbucks case, workers see the dress code not just as a change in attire, but as a symbol of the company’s failure to conclude a collective agreement after extended negotiations.
Employee perception of fairness and consistent enforcement can be critical. As has been noted in media coverage, Starbucks employees have complained that dress code policies are being enforced inconsistently among stores, with some employees being sent home for breach of the policy, and others not being reprimanded at all.
Curran points out that another major point of contention for the Starbucks strikers is the inconsistent application of the policy.
“They're really failing to see the business necessity of this, but also they're objecting to the arbitrary nature with which it's applied,” he says.
“One of the things that rubs salt in the wounds is that the employees don't view it as necessary, but … according to the employees and the union, that the policy is not being consistently applied.”
Check the collective agreement first
For Canadian employers, the starting point should always be the collective agreement.
"If there is a collective agreement in place, the first step for employers is to check what the collective agreement says about this issue," Curran says.
He explains that even if the agreement does not deal specifically with dress codes or similar policies, there may be language that grants management certain discretionary powers. In those cases, he recommends reviewing the provisions closely and seeking legal advice before introducing major changes.
“If there are provisions in place, then the employer should pay attention to those, try to follow them, and probably seek some legal advice if it's any kind of significant change,” he says.
“But it's oftentimes common that the provisions in the specific collective agreement do not deal with this, or do not deal with this specifically.”
Union grievances and KVP Co. test
Employers should be aware that any unilaterally imposed policy could trigger union grievances; to help prevent this from happening, Curran points to the importance of the six-part test from the arbitration case KVP Co. Ltd.
The 1965 decision still stands as the test for whether an employer has grounds to terminate or discipline an employee because of a breach of rule. Curran explains that the six points of the test, if used proactively by employers prior to implementing a unilateral rule, can be a powerful preventative measure.
"The employer may feel that they need to proceed with [a new standard or rule], regardless of the risks,” he says.
“If they need to proceed with either formulating and announcing this rule – let's assume that it's a rule that is not expressly covered by the collective agreement – if they're going to announce it and implement it, they can do that, as long as they follow the rules that are outlined in this KVP case.”
The six criteria outlined in the KVP test are:
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consistency with the collective agreement
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reasonableness
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clarity
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prior communication to employees
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notice that breach could lead to discharge
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and consistent enforcement.
“The one place where I think that probably Starbucks would be the most vulnerable, is the failure to apply the rule consistently,” Curran says, adding that inconsistency of rule enforcement is where many Canadian employers run into trouble.
“But you can extract guidance for employers from these rules, in terms of even their formulation, to make sure that they're safe and bulletproof and wouldn't be subject to a meritorious challenge.”
Source: 1965 CanLII 1009 (ON LA) | Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd.
Health and safety and business justification
Curran emphasizes that a rule’s enforceability often hinges on whether it can be justified by business necessity or occupational health and safety – the second point of the test.
“The ‘reasonableness’ is there has to be a legitimate business purpose for it, and or there has to be an occupational health and safety justification for it," he says. He gives the example of requiring protective eyewear, which could be reasonable even without express mention in a collective agreement.
However, he adds that the impact on employees must be proportionate. “There needs to be some balancing of interests – the business purpose of the employer with the interests of the employees," Curran says, noting that new uniforms due to rebranding would likely be accepted by an arbitrator, with caveats.
“What they may not necessarily accept is the extent to which the employer has to expect the employees to bear the costs of this kind of rebranding,” he explains.
“So there may be some balancing, and both the employer and the union would have to, if this were fought... provide evidence about that.”
Clarity, communication and consistent enforcement
Even if a rule passes the reasonableness test, Curran cautions that it must be clearly written and widely communicated.
This includes all aspect of the rule including enforcement and discipline for breaches: “It should be clear whether the employee violates it or not, and if they do violate it, the consequences should be clear.”
However, the best communication to practice is with the union itself, he stresses, and proactively.
“The biggest best practice is, where possible — and there may be situations where it's not possible — consult with the union beforehand. Because if you can get their agreement on this, then a lot of these things just go away,” Curran says.
“That's the single biggest thing that I would recommend to employers, is give strong consideration to consulting with the union before proceeding with these changes or with the new rules.”
Additional notes for non-unionized settings and gendered dress codes
Curran also warns that dress codes and other sweeping rules carry different risks in non-unionized workplaces, particularly where unilateral changes can trigger constructive dismissal claims.
He notes that while minor dress code changes are unlikely to meet the legal threshold for constructive dismissal, human rights code violations can be a risk, especially with gendered attire.
He urges employers to proceed with care: “It's inherently fraught,” he says, noting that human rights codes increasingly protect gender expression.
“If there's safety reasons for men versus women, that would be kind of legitimate,” he notes.
“But … for a number of reasons, requiring gender-specific uniforms is a problem, particularly in light of issues of transgender right now … more and more human rights codes are being amended to cover those things, and even if they're not, it's probably not necessary for the employer to go there anyway.”
