Can your boss prohibit you from wearing a “Fight for $15” button?

An employer maintained a work rule which required employees to wear a nametag at all times during a shift, but stated in part, “[w]earing any type of pin or stickers is not permitted.”

Employees showed up at work wearing pins which stated, “Fight for $15.” These pins expressed support for a campaign to raise the minimum wage to $15 per hour. The employer’s supervisor told one employee that the “Fight for Fifteen” button was not part of the uniform, and a different supervisor told another employee to remove his button.

This resulted in an unfair labor practice charge being filed against the employer with the National Labor Relations Board (NLRB).  The NLRB investigated the matter and determined that the employer violated the law, the National Labor Relations Act (NLRA).  The employer appealed and on March 21, 2017 the NLRB issued an opinion finding that the employer did violate the law by its acts of 1) maintaining a rule prohibiting employees from wearing unauthorized buttons or insignia; 2) instructing an employee to remove his “Fight for Fifteen” button; and 3) ordering employees to remove a Fight for 15 button.

In-N-Out Burger, Inc. and Mid-South Organizing Committee. Cases 16–CA–156147 and 16–CA–163251 (March 21, 2017).

The NLRB explained that Section 7 of the NLRA protects more than the right to engage in union activities. It also protects the right of employees to engage in concerted activities for their mutual aid and protection. The message on the button concerned wages, clearly a term and condition of employment. Therefore, the NLRB concluded that the NLRA 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.

There are some very rare situations where an employer can prohibit the wearing of such buttons.  In general, an employer that prohibits employees from wearing such insignia bears the burden of proving that special circumstances exist and the prohibition is narrowly tailored to address the special circumstances justifying an exception to the general rule.

The NLRB discussed case law addressing when employers were permitted in some cases to restrict the wearing of buttons and pins.  In the past the NLRB has found that special circumstances warranted an exception to the general rule where the wearing of such insignia would

  • jeopardize employee safety,
  • damage machinery or products,
  • exacerbate employee dissension, or,
  • unreasonably interfere with a public image that the employer has established as part of its business plan

In this case, the employer attempted to justify the ban on “Fight for $15” pin on the last category above, claiming that its business plan involves creating a public image of a very clean restaurant where all employees dress alike.  The NLRB rejected this argument, explaining that the NLRB and courts have found such restrictions to be lawful where the wearing of various buttons and pins would unreasonably interfere with the employer’s public image. The NLRB noted that in one past case where the NLRB and the court upheld restrictions on the wearing of buttons and pins, that was primarily based on the trademark brown uniforms worn by UPS employees.

The NLRB ordered the employer in this case to rescind its illegal rule and also ordered the employer to post an notice at all of its facilities that the employer violated federal labor law.

This case reminds employers that the NLRB is zeroing in on illegal language contained in handbooks/policies.
If you need any assistance in relation to disciplining, an employee due to language contained in your employee handbook, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111 before you take that action to make sure that it is legal.

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Law Office of David Miklas, P.A.

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