NLRB: “Fight for $15 Buttons” are In-Not-Out

It is well established that employers may require employees to wear a uniform while working, and it is also well established under the National Labor Relations Act (NLRA) that employees have the right to wear union buttons and insignia while working. These conflicting rights often create fights over the seemingly mundane question of what a company’s uniform policy may require and restrict. This recurring clash between a company’s control of its image, and an employee’s choice of wearing buttons, pins, or other items, most recently involved an In-N-Out Burger employee sporting a “Fight for $15” campaign button while on the job.

The three-member panel of the National Labor Relations Board (NLRB) decided unanimously that employees at In-N-Out cannot be prohibited from wearing buttons supporting the national “Fight for $15” campaign, despite the popular fast food chain’s uniform policy. The panel held that In-N-Out violated section 8(a)(1) of the NLRA by directing an employee to remove his “Fight for $15” button because the button did not comply with the company’s uniform policy.

The NLRA Also Applies to Non-Union Companies

Although many people operate under the misconception that the NLRA only applies to unionized companies or those involved in a union campaign, the Act protects more than the right to engage in union activities. It also protects the right of non-union employees to engage in concerted activities for their mutual aid and protection regarding the terms and conditions of their employment, such as their wage rates. Judge Keltner W. Locke found that the message on the button concerned wages, that the message was “clearly a term and condition of employment,” and that “the Act protected employees’ right to wear this button to the same extent it would have protected their right to wear a button referring to a union.”

Counsel for In-N-Out argued that the Act includes an exception for “special circumstances” which may justify prohibiting such pins. An employer that prohibits employees from wearing such insignia bears the burden of proving that such special circumstances do, in fact, exist. He stated that allowing employees to wear individualized pins impedes the company’s ability to further the image of unified and homogeneous staff in all of their locations.

Further, In-N-Out argued that allowing employees to wear unsanctioned buttons could pose health and safety concerns. But Judge Locke found none of these arguments persuasive, ruling that In-N-Out did not provide enough evidence to support their assertion that it fit into the “special circumstances” exception.

This case is a reminder to employers that seemingly innocuous managerial tasks, such as maintaining and enforcing uniform policy compliance, can have substantial legal implications. Employers should be very aware that even something as small as a lapel pin can be considered “protected activity,” and that even an otherwise sensible and valid uniform policy can draw scrutiny from the NLRB.

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