In-N-Out Burger has a uniform policy that forbids employees from wearing buttons, pins, or stickers on their uniforms because the burger chain wants to create the public image of a “sparkling clean” restaurant. This policy was challenged by workers who were refused to remove a “Fight for Fifteen” button. Let’s get to the law.
First, it doesn’t matter if an employer has a union. Nearly all private employers are subject to the National Labor Relations Act. Second, employees are generally allowed to wear whatever button they want at work unless “special circumstances” exist. To meet the special circumstances exception, employers must prove the prohibition of buttons (or the prohibition of certain types of buttons) are narrowly tailored to address only those special circumstances.
From the beginning, the law was not on the side of In-N-Out. There is a 1982 NLRB decision against Burger King for the same situation. Worth noting, that decision was overturned by the Sixth Circuit Court of Appeals (the court finding special circumstances existed to prohibit union buttons), but the current pro-union NLRB has steadfastly ignored federal court decisions that do not align with the outcome the Board desires.
Cases that found special circumstances existed were also reviewed. In 2004, the NLRB permitted a supermarket to restrict a butcher from wearing a t-shirt with the words “Don’t Cheat About the Meat.” In 2007, the NLRB permitted a construction company to bar a worker from wearing a hardhat depicting a person urinating on a rat balloon.
The NLRB ultimately decided In-N-Out’s prohibition was closer in facts to the Burger King prohibition than the grocery store or construction store prohibitions. In-N-Out did not sufficiently explain how its practice of prohibiting the buttons was necessary to uphold its business model, and the NLRB was not convinced the buttons would adversely affect the business in any way.
Chairman Miscimarra – Please add special circumstances for dress code policies to your long list of interpretations that should be overruled once your have a fully seated Board.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.