NLRB Changes the Law on Dress Codes

Add “dress codes” to the laws that the current NLRB has changed. This list gets longer by the day.

Now, when an employer attempts to impose any restriction on a worker’s right to display union insignia, that restriction is presumptively unlawful unless the employer proves “special circumstances” to justify the restriction.

Tesla arguably met the previous “special circumstances” test. But the Board changed the law, applied it to Tesla’s case, and Tesla lost even though it followed the then current law.

Welcome to life with the NLRB.

Tesla’s dress code required black cotton pants and a certain color cotton T-shirt. Different departments wore different colors. This was a way of identifying which employees were in what department and to lower the risk of an employee’s clothing “causing a mutilation” to a vehicle.

During a union organizing drive, pro-union employees who were in the department that wore black cotton T-shirts started wearing black cotton pro-union T-shirts. Tesla prohibited them from wearing the pro-union T-shirts.

Employees were able to have pro-union insignia on other things at work. But that no longer mattered to the NLRB.

At hearing, none of Tesla’s witnesses said they were aware of any situation where the pro-union T-shirts caused damage to a vehicle. Nor were they able to explain how that could even happen.

Tesla failed to prove that the black cotton pro-union T-shirts were more of a “mutilation” risk than black cotton T-shirts that did not have union insignia on them. Accordingly, Tesla failed to show “special circumstances” for the policy prohibiting union insignia on the T-shirts.

Whenever a law changes (like this), unions are quick to file unfair labor practice charges to see just how far the Board will go with the new law. Review your dress code policies to make sure they comply with this new interpretation of the law.

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Matt Austin is a nationwide management labor lawyer. Labor laws govern virtually all private-sector employees regardless of union membership. Proactive management of labor relations is critical to maintaining flexibility and increasing profit.

Matt also runs Austin Legal’s HR Legal Compliance Program that, for a small monthly fee, ensures HR decisions are protected by the attorney-client privilege.

Matt’s experience is deeply rooted in helping manage many aspects of his clients’ businesses. To effectively manage labor relations, he must also manage budgets, forecasts, new growth areas, and projected market corrections. High emotional intelligence is also critical to negotiating union contracts and to properly advise HR Legal Compliance members through the nuances of the law, its application to their companies, and how it will be received by employees.

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