In a recent ruling, the National Labor Relations Board (NLRB) determined that restaurant chain In-N-Out Burger’s uniform policy – which restricts employees from wearing buttons, pins, or stickers on their uniforms – violated Section 8(a)(1) of the National Labor Relations Act. The burger chain argued that special circumstances justified their policy, specifically that the lack of adornments contribute to creating the public image of a “sparkling clean” restaurant, but that line of reasoning was rejected by the NLRB.
In-N-Out’s uniform policy restricted employees from wearing any pins, buttons, or stickers on their person, aside from a company-issued name tag that had to be clean and not worn-looking at all times. The goal of their policy was to present the image of a clean restaurant, and they believed that having all employees wear the same white uniform, free of clutter, helped support that image. The buttons in question were part of a “Fight for $15” campaign that was supported by a group of Austin, Texas area employees.
What does this mean for employers? This particular case affirms two major points. The first point; whether an employer is unionized or not, most private employers are subject to the National Labor Relations Act (NLRA). The second point; while special circumstances might sometimes justify the need for restricting the display of certain accessories, it is the responsibility of the employers to prove that these circumstances exist, and that they specifically tailor their policies to address those circumstances.
Employers are already left wondering whether the NLRB’s pro-union stance will begin to shift with the change in administration, so this decision isn’t the best news for them. In these types of cases, the NLRB balances an employee’s right to engage in union activities against an employer’s right to achieve its reasonable business objectives or maintain discipline. The board looked at prior, similar cases to determine how it should rule in the In-N-Out case; including the following:
Case 1: In 1982, the NLRB came to a decision against Burger King, where it found that, similar to the In-N-Out case, special circumstances did not exist in regards to the company’s ban on union organizing buttons. Notably, the case was overturned two years later by the 6th Circuit Court of Appeals, but the NLRB stands by their ruling.
Case 2: A more recent case from 2004 was a decision where the board permitted a supermarket to restrict their butcher from wearing a t-shirt with the words “Don’t Cheat About The Meat.” The NLRB sided with employer, in agreement that the message could lead customers to fear they were being cheated by the supermarket.
Case 3: In 2007, the NLRB sided again with the employer, allowing a construction company to inhibit their worker from wearing a hardhat with a sticker that showed a person urinating on a “non-union” rat. The ruling was narrowly tailored to address only that particular sticker due to its “unquestionably vulgar and obscene” nature.
The In-N-Out case most resembled the Burger King case, and the board ruled accordingly. They didn’t believe that the burger chain reasonably explained how restricting employees from wearing the buttons was necessary to uphold their business model, and were not convinced that these buttons would adversely affect business in any way.
While the decision is concerning for employers, there are two lessons to be learned. First, most private employers are covered by the National Labor Relations Act (NLRA), as it designed to protect both employees and employers – even those that are not unionized. That means uniform policy standards such as those set in the above rulings apply to the vast majority of employers, except in special circumstances. Second, the burden of establishing those special circumstances always rests solely on the employer. The board typically extends those in cases where the uniform violation may jeopardize employee safety or damage equipment or products, increase controversy among employees, or unreasonably interfere with an employer’s public image which they have established through non-discriminatory appearance rules for their employees.
The In-N-Out ruling tells employers that public image-related restrictions on uniform accessories require very specific details. Customer exposure to paraphernalia alone does not mitigate a special circumstance, and it’s up to the employer to prove otherwise.
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