Blanket Ban on Insignia Violates the NLRA

November 19, 2018

The U.S. Court of Appeals for the Fifth Circuit has ruled that an employer’s dress code banning “any type of pin or stickers” violated the National Labor Relations Act (NLRA).

In In-N-Out Burger, Inc. v. NLRB, an employee wore a “Fight for $15” button to work, in solidarity with the national campaign to raise the minimum wage, and was instructed to remove it. He filed an unfair labor practice charge, and the National Labor Relations Board (NLRB) found that the employer’s policy violated the NLRA. On appeal to the Fifth Circuit, the employer argued that it strictly enforced its dress code in order to promote a consistent public image. Twice a year, however, the employer required employees to wear large company-issued buttons: once in celebration of the holiday season and once to support its charitable foundation. The employer also argued the no-pin rule was intended to ensure food safety.

The Fifth Circuit noted that a blanket ban on insignia, such as buttons and pins, relating to the terms and conditions of employment constituted an unfair labor practice under the NLRA. There is a “narrow” exception to this rule where the employer can demonstrate “special circumstances sufficient to outweigh [its] employees’ [NLRA] rights and legitimize the regulation of such insignia.” Such a special circumstance has been found where the wearing of insignia would “unreasonably interfere with a public image that the employer has established.” In this case, however, the employer “failed to demonstrate a connection between the ‘no pins or stickers’ rule and the company’s asserted interests in preserving a consistent menu and ownership structure, ensuring excellent customer service, and maintaining a ‘sparkling clean’ environment in its restaurants.” Moreover, the employer’s own pin-wearing requirement during the year undercut any “special circumstances” argument. Thus, the Fifth Circuit found that the wearing of small pins advocating for a higher minimum wage did not unreasonably interfere with the employer’s public image or implicate food safety.

We note that a different rule applies in the healthcare setting. Normally, a ban on buttons and other insignia is presumptively valid in patient care areas, as long as it is uniformly applied.