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JPEsq, Lawyer
Category: Employment Law
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Experience:  Experience as both corporate in-house counsel and private counsel
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I am a employee of a spa in Seattle Washington. I work as a

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I am a employee of a spa in Seattle Washington. I work as a massage therapist and I am paid a set rate for each massage I give. I am guaranteed the greater of $12/hour for all hours I am present at the spa or the total of my commissions.
Part of my work requirements is that i am present for so many predetermined "walk-in shifts" a week, where I must be physically present in the spa regardless as to my bookings. The number and length of the walk-in shift depends on your position in the spa. ie estheticians have more and longer walk-ins then massage therapists and the spa owner who works as an esthetician has NO walk-in shifts.
During walk-in shifts when we aren't booked we can do as we like at the spa: trade services, use our computers or phones, or socialize. But we are also expected to do laundry and any other tasks assigned by the owner. I have been asked to deep clean treatment rooms, train other employees, assemble office furniture, cover the front desk (we normally have an hourly employee working the desk.) Some times we will have one on one "training" with the owner where we give her a service without receiving commission.
At the end of the day we have "chore time" and we are assigned or pick from a list of chores to clean the spa in addition to cleaning the treatment room we used that day. The hourly front desk employees are assigned to clean the front desk area and waiting area by default. The other chores include cleaning the toilets, doing dishes, taking out the trash ect. Once again the owner doesn't do chores.
So question one: Can my employer require walk-in shifts that differ based on position and that do not apply to herself when she is working as an employee of her own company?
question two: can she require all commissioned employees to clean the spa every day when she will not.
I am not against cleaning my treatment room but the hourly employees aren't assigned a task outside their work area.

On another subject, the spa owner recently changed policy regarding shift coverage when we want to trade shifts. She has made it policy that at no time can there be only male massage therapists on shift. and on weekends there must be at least two female massage therapists working. So as a female if I and a male are working a shift together i must find another female if i want to take that shift off. The basis of this is that by not having a female massage therapist on for the clients to choose to work with the spa would lose money. This I have in writing in an email she sent out to all employees.
Is this gender bias or discrimination?

In spite of what may seem like a long list of complaints i really do like my job. But I am going to chat with my boss about my discomfort with her policies soon and i would like some references to show her. So any links to state law that you can provide will be extremely helpful.
Submitted: 2 years ago.
Category: Employment Law
Expert:  JPEsq replied 2 years ago.

1. "Can my employer require walk-in shifts that differ based on position and that do not apply to herself when she is working as an employee of her own company?"

 

Yes, your employer is allowed to treat different employees differently based on their jobs. She can even treat different employees in the same job differently as long as it is not based on an illegal motivator (like discrimination based on race, gender, religion, age or disability). She can certainly make special rules for herself as owner.


2. "can she require all commissioned employees to clean the spa every day when she will not."

 

Yes. She is allowed to treat herself differently, even if acting in a role as an employee.

 

3. "Is this gender bias or discrimination?"

 

It is gender discrimination. But in this case, it sounds like it is related to a rational business purpose, and as such, it probably is not illegal. If it is a fact that most clients prefer to work with female therapists, then she is allowed to discriminate in that practice. So it is technically gender discrimination, but if it serves a reasonable business purpose, then she is allowed to do it.

 

 

I know you want some references to tell her that she is acting

illegally, but she isn't. Sorry, I wish I could tell you otherwise... but I have a responsibility here to give the truth- the correct legal answer, rather than tell you what you hope to hear.

Customer: replied 2 years ago.
I have looked at the books on weekend before the change in policy and there is no evidence that the new policy is bringing in any more business. Most of our clients state no gender preference. Twice in two years have we had a client who didn't request a female refuse service because a male was the provider. I think she is setting herself up for trouble from disgruntled employees.
I'd still like to see references to the law please.
Expert:  JPEsq replied 2 years ago.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on gender. However, in that same law is the "bona fide occupational qualification" defense, which reads: "Notwithstanding any other provision of this subchapter ... it shall not be an unlawful employment practice for an employer to hire and
employ employees ... on the basis of his religion, sex, or national
origin in those certain instances where religion, sex, or national
origin is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise."

 

So if the employer can show that it is reasonably necessary for her to run her business, it is allowed. Everything you need is right there in the Act.

 

You can see the law here: http://www.eeoc.gov/laws/statutes/titlevii.cfm

 

The section you are looking for is Sec. 2000e-2(a)- employer practices. It reads:

 

"It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

 

 

Customer: replied 2 years ago.
and the law regarding expectations of commission based employees, please.
Expert:  JPEsq replied 2 years ago.

There is no statutory law that addresses such things. It is part of the "at will" nature of employment. That is, if it is not specifically illegal... it is legal. So that, an employee may treat different employees differently, unless it is for an illegal reason.

This is garnered through the common law (case law), and there won't be a case to support your position. I can't cite a law for you that does not exist.

JPEsq, Lawyer
Category: Employment Law
Satisfied Customers: 5106
Experience: Experience as both corporate in-house counsel and private counsel
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