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By: Paul H. Derrick
Employers that have a rule or policy prohibiting the wearing of pins and buttons that are not company-issued would do well to rethink that ban. The National Labor Relations Board has again ruled that an employer acted unlawfully by banning all pins and buttons other than those provided by the business.
Generally, workers have a federally-protected right to wear pins, buttons, and other items that show their support for causes involving wages, hours, and other terms and conditions of employment. The NLRB has found that special circumstances may warrant an exception to that rule where the wearing of such items 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 latest case, a fast-food chain told workers they could not wear small “Fight for Fifteen” pins on their uniforms in support of the national campaign for a higher minimum wage. Although the NLRB acknowledged that even a purveyor of hamburgers, fries, and soft drinks is entitled to take steps to maintain its chosen public image, the company was unable to demonstrate that the pins unreasonably interfered with its business plan of creating a public image of a very clean restaurant where all employees dress alike.
The decision is just the latest in a long string of reminders that the NLRB has a high bar when it comes to showing the special circumstances needed to justify a ban on non-company pins, buttons, and other insignia. Workers have a protected right to engage in a broad range of activities that involve both their own workplaces and the workplaces of others. Employers should consult with counsel and reexamine all rules and policies that might be viewed as unlawful restraints on protected employee activity and either modify them to comply with the general state of the law or be prepared to prove to the NLRB and courts that special circumstances exist justifying the restrictions. No business wants, or can afford, to become the next cautionary tale.
If you have any questions or would like more information, please contact Paul Derrick at [email protected].