NLRB Commits Fashion Faux Pas as Court Reverses Determination That Dress Code Violates NLRA
Author: Beth Zoller, XpertHR Legal Editor
A recent flurry of National Labor Relations Board (NLRB) activity and immense scrutiny of employer policies by the NLRB have left employers wondering about the power they have to enforce neutral workplace rules and policies especially when based on a proven business interest. Under Section 7 of the National Labor Relations Act (NLRA), both union and nonunion employees have the right to "engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." This includes discussions among employees regarding wages, hours and working conditions.
Over the past year, the NLRB has used Section 7 to invalidate a number of facially neutral workplace policies regarding a variety of issues, such as social media, employee speech and communications, employee conduct rules, at-will employment policies, arbitration provisions and confidentiality policies, based on the fact that these policies interfered with the employee right to engage in protected activity or could be reasonably interpreted to chill the right of employees to engage in protected activity. However, a recent circuit court decision reveals that, in certain instances, the NLRB may be going too far and that an employer still has a right to establish workplace rules and policies based on legitimate business interests.
In Medco Health Solutions of Las Vegas, Inc. v. NLRB, +2012 U.S. App. Lexis 25548 (D.C. Cir. December 14, 2012), the District of Columbia Circuit Court of Appeals overturned an NLRB decision holding that Medco committed an unfair labor practice and violated Section 7 by requiring an employee to remove his t-shirt with a message mocking the employer's employee recognition program and by banning insulting, provocative and confrontational expressions on clothing. The court found that the NLRB's determination that the rule against "phrases, words, statements, pictures, cartoons or drawings that are confrontational, slanderous, insulting or provocative" was too broad and interfered with the right to engage in protected activity to be flawed and inconsistent with prior NLRB rulings. The court sent the case back to the NLRB because it had failed to show that the clothing ban was instituted in response to union activity or that a reasonable employee could construe the rule as prohibiting protected activity. Further, the court accepted the employer's argument that such a ban on provocative and confrontational messages on clothing may be permissible because this may impact the employer's relationship with clients and customers. In doing so, the court vindicated the right of employers to tell employees what they can and cannot wear and implement a dress code that fits the image, brand and values the employer seeks to portray to the public, and this includes prohibiting a t-shirt ridiculing the employer's employee recognition plan.
Advice for Employers
In light of this decision, employers should proceed cautiously, but maintain a steady course in implementing workplace rules. Policies should be narrowly tailored and as specific as possible to protect the employer's legitimate business interests. Employers should be extremely careful and avoid broad and ambiguous language that could be interpreted as preventing employees from engaging in protected activity and working together to collectively improve their working conditions.
If an employer seeks to introduce a dress code, it is best for the employer to have a clear business reason, such as avoiding potential harm to customers and clients or protecting company image or values. Employers should also remember that a dress code for union employees is a mandatory subject of bargaining. See Yellow Enterprise Systems, +342 NLRB 804 (2004). Accordingly, an employer is required to bargain with any unions regarding a dress code before unilaterally imposing one.
Additional Resources
May an employer prohibit employees from wearing pro-union apparel, e.g., t-shirts, hats, pins?
NLRB Still Dishing About Social Media and Other Workplace Policies
Labor Relations > Labor Relations Overview > Prohibited Employer Activity