Alaska Employment Law

Grooming policy defeats public policy claim to privacy; unanimous opinion augers poorly for employees 

The Court has affirmed the trial court’s (Charles Huguelet) summary judgment for Safeway on Miller’s implied covenant claim that Alaska ’s public policy of privacy protected his right to wear his hair long.   In an earlier opinion, the Court had disposed of Miller’s claims based on the Constitution and the Human Rights Act.  In this appeal after remand, the Court (per Justice Matthews) held that Safeway’s right to set grooming standards outweighed Miller’s privacy interests. 

The Court spent some time describing Safeway’s grooming standards (for men, no hair beneath the collar), but none why they were more important than Miller’s acknowledged privacy interest, all of which is surprising given this caveat, relegated to a footnote:

Our decision is based on the facts of this case and should not be construed as a broad ruling on the constitutionality of private employers’ grooming policies.  As we have previously noted, there is considerable controversy over the disparate impact some grooming policies may have on racial minorities and women.

Employee counsel should be concerned about Justice Matthews’ statement that “the employee generally has a choice in where to seek employment.” 

In terms of assessing the impact of Miller on other public policy claims, the following statement suggests both a disinclination to find public policy claims, and a formula for identifying those few claims that will succeed:

the fact that employer grooming policies have generally been upheld in the face of statutory and constitutional challenges suggests that it would be inappropriate to upset such policies in the context of the implied covenant, which has been described as a narrow, judicially created exception to at-will employment.

Miller v. Safeway, Inc. 2007 WL 3227574 (Alaska Nov. 2, 2007). 

 John Havelock represented Miller.  Cynthia Ducey of Delaney Wiles represented Safeway.