What to Wear?

by Timothy F. Murphy

The National Labor Relations Board (“NLRB”) ruled that a Massachusetts Honda dealership broke the law when it maintained a handbook policy stating that “[e]mployees who have contact with the public may not wear pins, insignias, or other message clothing.” The dealership appealed that decision to the First Circuit Court of Appeals, which covers Massachusetts, but that court just sided with the NLRB. (Boch Imports, Inc. v. NLRB, (June 17, 2016)).

Many employers would be surprised to learn that the NLRB interprets the National Labor Relations Act (“NLRA”) to guarantee employees the right to wear union insignia and clothing during work time unless their employer can prove that “special circumstances” justify limitations on that right.

“Special circumstances” can include legitimate employer concerns over the effect that union buttons, pins, or attire may have on: 1) employee safety, 2) the potential for damage to employer goods or equipment, or 3) the potential to unreasonably interfere with a public image that the employer has established. This third concern was the biggest issue in the court’s decision to uphold the NLRB’s decision here.

The Court majority – it was a 2-1 decision – found that the dealership did not produce enough evidence that its dress policy was intended to create a specific and unique environment for the public as opposed to a general professional environment. Promoting a professional environment to customers was not deemed a “special circumstance” justifying the ban on union-related clothing and paraphernalia.

The lone dissenting judge thought that created a very confusing legal standard for employers. Although it might not be much consolation for employers, I thought employers should know that there are some judges who feel employers’ “pain” at trying to deal with “fine” legal distinctions requiring case-by-case decisions and run a business at the same time. So here are a couple of passages from Judge Stahl’s dissenting opinion:

Employers must examine each t-shirt, button, sticker, or hat and make an on-the-spot judgment call, in each instance, about whether a particular message in a particular context has “crossed the line.” Thus, the employer risks liability every time human resources or in-house counsel draws that line (assuming the business can afford such experts) and bears the burden of proof to boot. And, of course, once that determination is made, employees are free to don a slightly altered piece of attire, leaving the employer in a quicksand of boundary-testing litigation.

And

Even a manager aware of [prior NLRB cases on dress policies] will have difficulty making a contemporaneous assessment when an employee shows up wearing a union button that is 2-1//4-inches wide (rather than 2-1//2-inches wide), is a slightly-less-conspicuous shade of mustard (rather than a conspicuous bright-yellow), and is inscribed with an edgy (but not quite provocative) slogan. Pick wrong, and the employer will be liable for a labor-rights violation. Pick right, and the employee may return the following day with a slightly smaller and darker button. To businesses seeking to avoid liability, and courts seeking to ascertain administrable rules, the Board’s standard is simply unworkable.

While Judge Stahl’s words are music to the ears of those on the front lines of synching legal compliance with the real world of the day-to-day workplace, his opinion is not law.  In the end, they are just words, albeit insightful words.

This case leaves employers with the challenge of drafting and maintaining dress code policies for their “public-facing” employees that are narrowly tailored to promote a specific and unique public image. No easy task.  Employers faced with this challenge would be wise to consult with labor and employment counsel.

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