Recently, a company was ordered to pay $1.75 million to thousands of employees who had to clock out during bathroom breaks.
A living wage or personal dignity is choice that workers should never have to make. It is also an imposition that employers should never be able to place on anyone. The allegations made by the employees in this case were primed to go viral because of how this conduct shocks our conscience. While the practice is unjust and unfair, it also illuminates deeper implications about how a workplace is managed.
Presumably this company established the ‘no-bathroom-pay’ guidelines in order to maximize the productivity of their employers relative to their wage. If an employee is not paid for bathroom breaks, the argument is that the employer receives the same productivity at a lower cost. The company is not the first employer to try applying this as a cost-saving measure. Employees operating machines at the McWane Corporation, a pipe foundry, once alleged they were forced to remain at their station and urinate in their pants or be punished. McWane has long since changed, but similar rulemaking apparently still goes on.
However, such a practice likely has the opposite effect. Imposing rules over such a basic human need signals to employees that they are not valued or trusted. It signals that they cannot manage their time and will shirk if given even the slightest opportunity to do so – such as a visit to a rest room. Employees told this quite directly will more likely place their interests over the interests of the company, known as a decline of organizational citizenship. They may also retaliate by shirking in other ways that the employer cannot detect. Good talent will leave, forcing the employer to expend costly resources retraining a new employee on firm specific skills. A no-bathroom-pay rule would erode any useful culture in the enterprise, and with it employee morale and productivity.
The court fining the company focused on wage violations, and rightly so. There is also a more subtle gender implication of this practice. According to Paradoxes of Gender, by Judith Lorber, cultural, psychological, demographic, and other characteristics mean generally greater bathroom use by women than men. Women’s clothing takes longer to disrobe. Women who are pregnant may need to urinate more often. Women have menstrual cycles requiring bathroom usage that men do not. All of these factors increase bathroom use for women, and thus a no-bathroom-pay rule disparately impacts women more than men. This practice is thus not only unethical, illegal from a wage perspective, but also arguably violates state and federal anti-gender discrimination law.
The simple advice to employers: don’t ever do this. It is draconian, inhumane, illegal, and will impose far more costs than it saves.
Associate Professor of Business Law, Eversource Energy Chair in Business Ethics
Robert Bird is an associate professor of business law and the Eversource Energy Chair in Business Ethics at the University of Connecticut School of Business. Robert is the recipient of numerous teaching and research awards and the past editor in chief of the American Business Law Journal. Robert’s research interests are employment law, corporate governance, flextime, business ethics, and corporate responsibility. View posts.