July 28, 2023 • By Dennis Beaver

Dennis BeaverMy paralegal, Anne, buzzed me: “You have Mike on the line who just got fired from his job as an auto mechanic and adamantly claims that he did nothing wrong. He is very upset.”

– Put him through.

“So, Mike, what happened?”

“Well, Mr. Beaver, my boss was sued in small claims court by a customer who claimed that our repairs were inadequate and took her car to another shop. I worked on the vehicle but was never allowed to testify and the judge found for the customer. Then I was fired.”

He insisted that was the entire story, but I had serious doubts. I recorded his verbal authorization to discuss this with Ron, the employer, phoned and at once heard, “My gosh, Dennis! I read you in Kiplinger every week and just love your column! How can I help?”

“Mike claims that he was fired because you lost in small claims court. Very often lawyers are only told a fraction of what really happened, so can you fill me in on the rest and may I join him in on this call?”

Ron agreed.

Telling the Truth Slowly

A friend of this column, Southern California labor law attorney Jay Rosenlieb, has a phrase to describe what I was about to hear: “Telling the Truth Slowly.”

Our conversation went like this:

Me: I understand Mike was terminated only because Ron lost in court. Is there any other possible reason, because that doesn’t seem very fair?

Ron: Mike failed to tell you that he was ejected from the courthouse because of his extreme body odor. He is a brilliant technician, but his personal hygiene is non-existent, and it is so bad that we put him in a small shop away from the other mechanics and the public.

I told him that he had to clean himself up for court, and if he did not, and his body odor resulted in the court refusing to allow him to testify, he would be out of a job.

Me: Is that true, Mike?

Mike: Well, yeah, it’s not my religion or because I have some illness that causes bad body odor, I just don’t care much about bathing, but… . (Mumbling something.)

Me: Is that true, Mike? Were you warned and still came to court that way?

Mike: “Yeah, I’m sorry. I didn’t tell you the entire story, Mr. Beaver. I was afraid that you would hang up on me if I did. All the other lawyers I spoke to did hang up on me.

Me: I haven’t hung up on you yet, have I? Ron tells me that you are a brilliant technician.

Now, he and I have never spoken before, and so I am going to make a suggestion that he might or might not accept, and it requires your buy-in.

If the shop has medical insurance that includes mental health counseling, Ron will arrange for you to see a counselor as soon as possible, and you will shower, shampoo and wear clean clothing to work every day starting immediately.

It is not normal to run around smelling like the county dump, and unless you have some health reason or are protected by the ADA, an employer is not required to keep an employee whose very presence interferes with their business.

So, it is your decision if Ron agrees. Ron?

Ron: I agree and we do have great medical insurance that has mental health coverage.

Mike: I also agree and will come to work tomorrow like you said, Mr. Beaver.

How to Handle these Issues

Attorney Rosenlieb outlined the steps an employer should take:

(1) With this issue – bad body odor – as with most other issues, go through the front door.

This means sitting down in private with the employee, and saying, “I need to discuss an issue with you that is personal in nature, likely uncomfortable to discuss, but we need to talk about it candidly, and that is your body odor. Is there anything that we can do, as this is interfering with work performance of other employees?

(2) If there is no evidence of an ADA issue or something similar, an employer has the right to expect its employees to be presentable in public and to comply with the employer’s established grooming standards, or reasonable grooming standards. A refusal justifies termination.

Smelling like the cosmetics counter at Macy’s

(3) Closely related to offensive odors is the employee who walks into the room and smells like the cosmetics counter at Macy’s.

It’s the same thing. Go through the front door, and say, “several of us have noted that you seem to be a bit heavy on the perfume and cologne. To promote a productive workplace and consider co-workers and our customers who might be bothered by or allergic to these strong scents, we need you to greatly reduce the amount of what you are using.”

Update on Mike and Ron

Several days later, Ron called:

“Dennis, Mike kept his word, returning to work the next day clean as could be. In fact, he was dropped off by his fiancée who told me to thank you. She had almost called off their wedding, but our three-way chat and getting into counseling finally woke him up. They want you to attend their wedding!”