The federal appellate court that sits in New Orleans recently agreed with the National Labor Relations Board’s (NLRB) finding that In-N-Out Burger violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it barred its employees from wearing buttons supporting the “Fight for $15” movement, which seeks an hourly wage of $15 for minimum-wage employees. The case implicated the employees’ right to engage in protected concerted activity under the NLRA, a commonly misunderstood area of the law.
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When employees protest or complain about working conditions, their conduct is protected under the NLRA if several employees engage in the protest or one employee speaks on behalf of the other employees. The employee’s button-wearing clearly constituted protected concerted activity, so the question was whether In-N-Out’s policy of prohibiting workers from wearing any type of pin or sticker on their uniforms trumped their federally protected right to protest their wages. Let’s take a look at what happened and how that question was answered.
Button Ban Results in NLRB Charge
The In-N-Out employees wore a quarter-sized button featuring “$15” superimposed on an image of a raised fist. Management told them to remove the buttons, citing the company’s appearance policy. In response, the employees filed a charge with the NLRB.
In-N-Out asserted its interest in maintaining a “unique public image” and argued its concern about “[e]nsuring food safety” constituted “special circumstances” sufficient to justify the button ban. After a hearing, an administrative law judge (ALJ) held that In-N-Out violated the NLRA by maintaining and enforcing the work rule banning the buttons, noting that bans on insignia are presumptively invalid under the Act. The NLRB affirmed the ALJ’s decision.
In reviewing the NLRB’s decision, the appellate court found that In-N-Out’s stated desire to have a consistent image reflective of a sparkling clean environment and outstanding customer service was basically irrelevant, noting the “public image exception” is an exceedingly narrow one. Further undermining In-N-Out’s defense was its requirement that employees wear a “Merry Christmas” button in December and a button soliciting donations for a nonprofit organization founded by In-N-Out’s owners in April. While the company argued those buttons were a part of the uniform, the appellate court disagreed.
The court noted that if the employee uniform, which was touted as an integral component of In-N-Out’s public image, changes several times each year, then the company’s interest in maintaining a consistent public image wasn’t as great as it suggested or the uniform didn’t play a critical role in maintaining that public image. Moreover, the mandatory December and April buttons were larger and far more conspicuous than the Fight for $15 buttons. The court explained that an employer must present concrete rather than speculative evidence of the negative effects it would suffer if it wasn’t allowed to enforce a blanket ban on such insignia.
In-N-Out also argued that food safety was compromised because the lightweight buttons could fall into a customer’s food. However, the court noted that the company made no attempt to test the buttons to see if they were in fact unsafe, and there was no discernible difference, from a safety standpoint, between the company-issued buttons and the Fight for $15 buttons.
Lessons for Employers
It remains to be seen whether this case could spell more trouble for In-N-Out Burger in the form of union organizing. Often, one of the first signs of a union-organizing campaign is employees wearing buttons, hats, or T-shirts signifying their support for a particular union or reflecting their complaints about wages and benefits. A consistently enforced insignia and uniform policy could be a valid defense for an employer that starts seeing those signs of unionizing in its workplace and wants to lawfully get rid of them. But when such policies are selectively enforced (as the court found they were in this case), it will be hard, if not impossible, to prevent employees from wearing union insignia or other protected items.
If employees’ wearing of buttons or other insignia creates a safety issue, you may have a “special circumstances” defense, but such an argument must be proven, and it isn’t available if employees are allowed or required to wear non-union-related paraphernalia. In short, a “special circumstances” ban must have a known and provable adverse impact on (1) employee safety, (2) the employer’s public image, or (3) the employer’s relationship with its clientele. For example, healthcare institutions may impose such a ban in immediate patient care areas to protect patients and ensure they aren’t adversely affected by the buttons or insignia.
To avoid the result of the In-N-Out case, you should consult your labor and employment counsel to determine whether your dress code policies and practices can be strengthened. But remember, even strengthening your policy won’t provide a defense if you don’t have a “special circumstances” argument to support a prohibition on certain insignia or paraphernalia. The bottom line is, if your operations require a uniform, you must be uniform in enforcing your appearance policy and articulate valid safety or image reasons for any insignia or clothing ban.
Sid Lewis is a partner in Jones Walker LLP’s labor relations and employment practice and a contributor to Louisiana Employment Law Letter. He may be contacted at slewis@joneswalker.com.