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The Bennett Law Firm, P.A.
New Hampshire

The National Labor Relations Act (The Act) allows that employees in uniform have some right to wear union buttons and insignia while working, although most employers would prefer to maintain the uniformity of their uniforms and thus control over its image.  Those conflicting rights have created fights over what an employer may require and what it may restrict.  This recurring clash between a company’s control of its image and an employee’s choice of wearing small items on their uniforms most recently involved In-N-Out Burger employees wearing buttons that advocate for a higher minimum wage.

In April 2015, two employees at an In-N-Out Burger restaurant 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 and buttons” uniform policy and asked them to take them off.  While both workers complied, one of the employees also exercised his right to file an unfair labor practice charge with the National Labor Relations Board (NLRB).  The NLRB found that by requiring the employees to remove the buttons, In-N-Out management violated employee rights.

The Act 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 Burger argued that their button rule fit under a category of “special circumstances” for two reasons.  First, it claimed the employer had long maintained a carefully crafted public image with strict adherence to an employee uniform as part of its spotless image.  The employer also 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.

An Administrative Law Judge rejected both arguments in 2016, a decision that was later upheld by the NLRB and now by the United States Court of Appeals for the Fifth Circuit, one of the most employer friendly appeals courts in the country.  They determined that the employer’s first claim was undercut by the requirement that employees wear even larger buttons twice a year to promote its charitable foundation.  In-N-Out also argued that allowing employees to wear unsanctioned buttons could pose health and safety concerns, but the Judge and the NLRB found these arguments less than persuasive.

In-N-Out appealed the decision, asking for the ruling to be set aside.  The Federal Appeals Court said 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’s ruling reaffirms that the exception to the general requirement is “narrow”, and that banning pins on uniforms must be done in only the most compelling of circumstances.

This case serves as a reminder to employers that even something as small as a lapel pin can be considered “protected activity”, and that an otherwise sensible and valid uniform policy can draw scrutiny from the NLRB.  For more information on this subject, please contact Peter Bennett (pbennett@thebennettlawfirm.com) or Rick Finberg (rfinberg@thebennettlawfirm.com).