Did Federal Labor Law Just Abolish Your Organization’s Dress Code or Uniform Policy?

The US National Labor Relations Board recently issued its first precedent-shifting decision under the Biden-Harris administration concerning employer dress codes and uniform policies. The Board, in a 3-2 split decision, held that employers presumptively violate the National Labor Relations Act by maintaining facially neutral dress codes or uniform policies.

Specifically, employers that maintain a dress code or uniform policy that could prevent or limit, to any degree, the wearing of union-supportive clothing will violate the National Labor Relations Act (NLRA) unless the employer shows “special circumstances” justifying the potential restriction.[1] In other words, a typical policy requiring an employer uniform with a certain color and employer logo will be presumptively unlawful.

This holding is seemingly an expansion of the “special circumstances” test to the mere maintenance of basic dress codes or uniform policies, as prior National Labor Relations Board (NLRB or Board) cases have applied that onerous test on employer policies that prohibited or restricted the wearing of union messages or insignia, such as buttons, pins, or stickers, or to situations where employers actually restricted employees from wearing such items at work.

THE DECISION

The Board majority cited the Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, (1945) and its progeny Stabilus Inc., 355 NLRB 836, 838 (2010), whereby federal labor law has balanced an employer’s right to control the workplace and direct employees with employees’ right to show their support for unions or related NLRA-protected activities. That balance at times relies on the “special circumstances” test allowing employers that place restrictions on union insignia in the workplace to justify those restrictions based on some strong business justification, such as safety, product damage, employee dissension, and/or customer or public image. It has also been the law for decades that an employer cannot discriminately enforce a dress code or uniform policy, or otherwise adopt one with the intent to restrict NLRA-protected activity.

However, the Board determined in this case that the “special circumstances” test extends to all forms of dress codes or uniform policies. In other words, employer dress codes or uniform policies are presumptively unlawful now unless the employer can prove special circumstances exist. The Board majority overruled the 2019 Wal-Mart decision, which had granted employers more flexibility to regulate the size and/or appearance of union insignia in the workplace.[2]

Board Members Ring and Kaplan sharply dissented, noting that the holding in this case was “both unreasonable and contrary to Supreme Court precedent,”[3] and “an extension of Republic Aviation, not an application of it.”[4] In their reading of Supreme Court precedent, where an employer maintains a facially neutral, nondiscriminatory dress code that requires specific apparel to be worn while working but does not prohibit or restrict the display of union insignia, no violation occurs as long as the employees have some other meaningful opportunity to display union insignia on their person while working.

The dissent also noted that the result of the majority’s decision would make unlawful most employer dress code policies prohibiting certain types of clothing at work, such as “t-shirts, exercise outfits, tube tops or muscle shirts” simply because the policy could be read to prohibit types of clothing that might include union insignia.[5]

PRACTICAL CONSIDERATIONS

The Board’s decision in this case requires employers covered by the NLRA to establish a special circumstance to legally maintain a dress code or uniform policy, and the decision may be interpreted to allow employees to effectively substitute a union-issued “uniform” or attire in place of the employer’s uniform. The Board made several sweeping statements that employers should consider when moving forward:

• “That an employer’s uniform policy or dress code effectively prohibits employees from wearing all clothing other than the clothing prescribed by the employer (including, but not limited to, union clothing) does not make the employer’s action lawful ….”[6]
• “Further, the special circumstances test appropriately places the burden on the employer because, as the party asserting that employees’ Section 7 rights must be restricted to achieve a legitimate business objective, it “logically is in the best position to offer evidence on the point.”[7]
• “To avoid such confusion in the future, we reaffirm that, consistent with Republic Aviation and decades of precedent applying it, when an employer interferes in any way with employees’ Section 7 right to display union insignia (whether through buttons, pins, stickers, shirts, hats, or any other accessories or attire), that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that justify its interference.”[8]

Based on the NLRB’s decision, an increase is likely in the number of unfair labor practice charges alleging that the mere maintenance of dress codes or uniform policies violates the NLRA, especially in industries or workplaces without customer-facing employees. Employers should (1) commence a fresh review of their dress codes and uniform rules given this decision, (2) identify and/or bolster evidence to support the special circumstances test, and (3) where warranted, modify those rules to avoid NLRA challenge.