Dress Code Danger Zone
Sep 21, 2022
To embed, copy and paste the code into your website or blog:
<iframe frameborder="1" height="620" scrolling="auto" src="//www.jdsupra.com/post/contentViewerEmbed.aspx?fid=302c11cf-7aa4-4e0d-bd59-1d39bc4e3480" style="border: 2px solid #ccc; overflow-x:hidden !important; overflow:hidden;" width="100%"></iframe>
Does your company have a dress code or require a uniform? If so, the National Labor Relations Board may have just decided that your policy violates the National Labor Relations Act (NLRA). In a precedent-altering decision, the Board determined that a dress code or uniform policy that even implicitly limits employees’ ability to wear clothing that supports a union, unionization, or any collective action related to the terms and conditions of employment violates the NLRA, unless the employer can prove that “special circumstances” justify the limitations imposed by the policy. The case before the Board involved the dress code at a Tesla manufacturing plant. The key provision of Tesla’s policy required that employees wear either Tesla “team wear” or plain black t-shirts. T-shirts with any other emblems were not permitted. Tesla justified this restriction by arguing that unapproved emblems could scratch or otherwise harm the finishes on new cars. As an accommodation to union members, though, Tesla did permit employees to wear union stickers on otherwise compliant t-shirts. Considering Tesla’s policy, the Board first determined that, even though the policy did not specifically target union activity, its limitations were an implicit prohibition of union emblems. Overturning a three-year-old Board decision, the Board decided that Tesla’s implicit limitation on union emblems was impermissible on its face. Going further, the Board held that any limitation on the display of union emblems is presumptively invalid, unless an employer can establish special circumstances to justify its limits and show that its limitations are narrowly tailored to meet these circumstances. Tesla’s argument that union members could still wear union stickers was quickly batted away by the Board. The Board determined that an employer’s explicit consent to the wearing of buttons, pins, stickers, or other attachments to clothing could not, in and of itself, justify a limitation on the wearing of other union clothing. Instead, the employer had to specifically prove that the limitation in question was justified by special circumstances, a burden the Board found that Tesla could not meet. So, what should employers do in the wake of the Tesla decision? First, employers should keep in mind that the NLRA applies to most private employers, whether they currently have union members or not. Second, employers should consider reviewing dress code and uniform policies to determine if they could be read as restricting the wearing of clothing or paraphernalia that contains union or collective action-related messaging. Third, should an employer wish to maintain a dress code or uniform policy that could restrict protected messaging, the employer should determine the special circumstances that justify the limitation and ensure that those limitations are narrowly tailored to meet these special circumstances. The current Board and the NLRB General Counsel are taking an aggressive approach in their interpretations of the scope of the NLRA. Employers should stay attuned, as further precedent-shifting decisions are expected from the Board in the coming months.