Bowling: danger zone with dress code

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Michael W. Bowling

Does your company have a dress code or does it 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 decision that changed the precedent, the Board determined that a dress code or uniform policy that even implicitly limits the ability of employees to wear clothing that supports the union, organizing or any collective action related to the conditions of employment violates the NLRA, unless the employer can prove that “special circumstances” justify the limits imposed by the policy.

The case before the Commission concerned the dress code at a Tesla manufacturing plant. The key provision of Tesla’s policy required employees to wear either Tesla “team apparel” or plain black T-shirts. T-shirts with other emblems were not allowed. Tesla justified this restriction by arguing that unapproved emblems could scratch or damage the finishes of new cars. However, to accommodate union members, Tesla allowed employees to wear union stickers on otherwise compliant T-shirts.

Considering Tesla’s policy, the Board first determined that while the policy did not specifically target union activity, its limitations were an implied prohibition on union emblems. Overturning a three-year-old Board decision, the Board ruled that Tesla’s implied limitation on union emblems was prima facie unconscionable. Going further, the Board ruled that any restriction on the display of union emblems is presumed invalid unless an employer can establish specific circumstances to justify its limits and demonstrate that its limits are closely tailored to those circumstances.

Tesla’s argument that union members could still wear union stickers was quickly dismissed by the Board. The Board determined that an employer’s express consent to the wearing of buttons, pins, stickers or other clothing accessories could not, in 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 the particular circumstances, a burden the Commission found Tesla could not bear.

So what should employers do in the wake of the Tesla decision?

First, employers should bear 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 interpreted as restricting the wearing of clothing or accessories that contain messages related to unions or collective action.

Third, if an employer wishes to maintain a uniform dress code or policy that might restrict secure messaging, the employer must determine the particular circumstances that warrant the limitation and ensure that those limitations are closely tailored to meet those particular circumstances.

The current Board of Directors and General Counsel of the NLRB take an aggressive approach in their interpretations of the scope of the NLRA. Employers must stay tuned as further decisions that will change precedents are expected from the Commission in the coming months.

Michael W. Bowling is an attorney at Crowe & Dunlevy, Crowedunlevy.com, and a member of the Labor and Employment Practice Group. He previously served as Vice President of Human Resources at Integris Health.

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