NLRB Embraces Stringent Review of Employer Dress Codes

On August 29, the National Labor Relations Board (NLRB or the Board) overturned a 2019 decision concerning the lawfulness of employer-promulgated dress codes and workplace apparel policies. In Tesla, Inc., the Board majority held that a workplace rule or policy that limits an employee’s ability to wear union insignia and logos is presumptively unlawful unless the employer can show that special circumstances exist to justify such a rule.

Background

Both the Supreme Court and the NLRB have long held that the display of union insignia or logos is protected by Section 7 of the National Labor Relations Act (NLRA). However, the court also noted that Section 7 rights are not absolute thus the NLRB has been tasked with balancing the rights of employees to engaged in protected activity and the rights of an employer to run its business and maintain discipline. Accordingly, where an employer sought to prohibit the display of union insignia or logos, the employer had to show there were some special circumstances justifying such a prohibition.

In its 2019 decision, Wal-Mart, Inc., the NLRB distinguished between workplace dress policies that expressly prohibit any display of union insignia and those which merely impose a limitation on such a display such a size, placement or style. In that case, the Board explained that an outright prohibition on displays of union insignia would be presumptively unlawful and subject to the special circumstances test, however, a mere limitation would be subject to a lesser standard so long as the policy still afforded the employee a meaningful opportunity to display union insignia.

On August 29, the Board overturned the Wal-Mart decision and expressly held that any prohibition or restriction on an employee’s ability to display union insignia will be presumed unlawful. This includes facially neutral dress codes that only implicitly prohibit the wearing of non-company logos.

What This Means for Employers

A dress code is now presumed unlawful even if it includes no express prohibition on union-specific logos. For example, Tesla’s “team-wear policy” required certain employees to wear company-issued black shirts and occasionally permitted those employees to wear an alternative plain, black shirt with a supervisor’s permission. During a 2017 union organizing campaign, some employees began wearing a black cotton shirt with a small union campaign slogan.

Pursuant to the Board’s ruling in Tesla, where an employer’s dress code prohibits the display of union insignia, the burden falls on the employer to demonstrate special circumstances to justify such a prohibition. Demonstrating the requisite special circumstances is difficult. The Board previously enumerated a non-exhaustive list of special circumstances that satisfy this burden: 

• Ensuring employee safety
• Preventing damage to machinery or products
• Avoiding exacerbation of employee dissension
• Maintaining an established public image

Although these categories are seemingly broad and the Board made clear these are not the only categories of special circumstances, in practice satisfying the special circumstances test is a significant challenge. For example, Tesla explained that its prohibition was to avoid damage to components on the production line and for supervisors to easily identify which employees worked in which classifications. The Board rejected these justifications because Tesla only proffered evidence of one incident where a raised metal emblem caused damage to a vehicle and did not explain why the absence of union insignia facilitated the identification of workers based on shirt color.

Employers need to take extra care in promulgating and enforcing workplace dress code policies. Employers may still promulgate workplace apparel policies but should be wary that any prohibition on the display of non-company logos and insignia will be presumed unlawful. Even where a legitimate business reason exists that would satisfy the special circumstances test, the time and cost of making such a showing can be significant. If you have any questions about your dress code and how this decision will affect your business, please contact an attorney on the Faegre Drinker labor management relations team.