A federal appeals court held that In-N-Out Burger violated the National Labor Relations Act (“NLRA”) when it instructed employees not to wear “Fight for $15” buttons on their uniforms.FN1 The National Labor Relations Board (“NLRB”) and federal courts have long held that employees have the right to wear buttons, pins, and stickers that relate to the terms and conditions of their employment and unionization, except under “special circumstances.”FN2 Special circumstances may exist when allowing employees to display such items would: (1) jeopardize employee safety; (2) damage machinery or projects; (3) exacerbate employee dissention; or (4) unreasonably interfere with a public image that the employer has established through appearance rules of its employees.
In In-N-Out Burger, the company did not allow employees to wear any pins or stickers, except certain required buttons that the company required employees to wear at limited times of the year. The company argued that its rule supported its public image of cleanliness and consistency, and promoted safety (as the buttons could fall into food, unnoticed by workers). The NLRB, and then the Fifth Circuit Court of Appeals,FN3 held that these business reasons were insufficient to meet the “special circumstances,” particularly because the company itself required employees to wear company buttons at certain times of the year, and because no evidence supported the company’s stated safety concerns.
Although we expect the NLRB will remain friendly to management in the foreseeable future, employers should be aware of long-standing labor law principles, including the presumptive right of employees to wear union insignia while at work. The NLRB and courts apply exceptions to this rule narrowly, and employers therefore are encouraged to consult with an employment attorney to assess whether company policies and practices pass muster.
FN1: In-N-Out Burger, Inc. v. NLRB, No. 17-60241, 2018 WL 3339549 (5th Cir., Jul. 6, 2018). The “Fight for $15” is a union-led movement attempting to raise minimum wages throughout the United States. Seehttps://fightfor15.org/about-us/.
FN2: Specifically, the NLRB and courts have long held that such bans on wearing union buttons or insignia violate Section 7 of the NLRA, which protects the right of employees to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8 of the NLRA makes it an unfair labor practice to interfere with or restrain so-called Section 7 rights. 29 U.S.C. § 158(a)(1).
FN3: The Fifth Circuit Court of Appeals hears appeals from federal courts in Louisiana, Mississippi, and Texas, and appeals from NLRB decisions.See 29 U.S.C. § 160(f).