Appeals Court protects employees’ right to wear buttons advocating higher wages

While employers may require employees to wear a uniform at work, under the National Labor Relations Act (NLRA) employees have the right to wear union buttons and insignia while working. Those conflicting rights have created fights over what a company may require and what they may restrict. This recurring clash between a company’s control of its image and employees’ efforts to advocate for workplace change most recently involved In-N-Out Burger employees wearing buttons that advocate for a higher minimum wage.

In April of 2015, two employees at the In-N-Out burger chain in Austin, Texas came to work wearing “Fight for $15” buttons during their shift in support of a national minimum wage and union campaign. Their supervisor told the employees that wearing the pins violated the company’s “no pins or stickers” uniform policy and asked them to take them off. While both workers complied, one of the employees also opted to file an unfair labor practice charge with the National Labor Relations Board (NLRB).

The NLRB has long recognized that Section 7 protects the right of employees to wear items such as buttons, pins, and stickers relating to terms and conditions of employment such as wages, hours, unionization and other protected matters. In-N-Out argued, however, that their button rule fit under a category of “special circumstances” that would exempt them from a violation of Section 7 for two reasons. First, In-N-Out claimed that it had long maintained a carefully crafted public image with strict adherence to the employee uniform as part of their spotless image. Second, the company attempted to justify its policy as a safety issue, saying that the small size of the “Fight for $15” button and its flimsy pin mechanism would create a hazard if the buttons fell into the food.

The Administrative Law Judge rejected both arguments in 2016, a decision that was later upheld by the NLRB. The NLRB ultimately issued a cease-and-desist letter to In-N-Out to withdraw their pin and sticker ban, which “makes no exception for buttons or insignia pertaining to wages, hours, terms and conditions,” among other things.

In-N-Out appealed the decision, asking for the ruling to be set aside. On July 6, 2018, the Fifth Circuit Court of Appeals sided with the NLRB, holding that the fast-food chain was unable to demonstrate the “special circumstances” necessary to allow it to avoid federal labor law’s general requirement that employees must be permitted to wear union insignia at work. The Court determined that the company’s first claim was undercut by its requirement that employees wear even larger buttons to promote the company’s charitable foundation each April and December. The Court also rejected In-N-Out’s argument regarding the concern of food safety, finding that the NLRB’s conclusion that the pins did not pose a safety hazard was “reasonable and supported by substantial evidence.”

The ruling reaffirmed that the exception to the general rule under the NLRA is narrow and that employers will find themselves on the wrong side of the law if they try to block workers from displaying their support for unionization or union activity while at work.

This case serves as a reminder to employers that even the benign managerial task of maintaining and enforcing uniform policy compliance can have legal implications. Employers should be aware that even a small lapel pin can be considered “protected activity,” and that even an otherwise sensible and valid uniform policy can draw scrutiny from the NLRB.

Employers with a uniform policy that bans workers from wearing buttons, stickers, or other insignia should be sure that they have significant evidence to back up their argument of special circumstances. Employers should also consider carefully drafting their uniform policy to specifically exclude wearing buttons, pins, stickers, or other items pertaining to hours, wages, or other terms and conditions of employment that may be considered protected activity under the NLRA. 

Peter Bennett is president and Timothy Powell is an associate of the Bennett Law Firm, representing management, including franchisees, in matters of labor and employment law.