The National Labor Relations Act requires employers to allow all employees—including non-unionized ones—to express opinions on the terms and conditions of their employment. The National Labor Relations Board and the Fifth Circuit recently reaffirmed this idea in a case where the employer argued that the employees’ expression would hurt the employer’s business. The case is In-N-Out Burger v. NLRB, 894 F.3d 707 (5th Cir. 2018), and a petition for certiorari to the United States Supreme Court is pending as of October 24, 2018.
The dispute started at an In-N-Out Burger in Austin, Texas. Several employees began wearing buttons on their uniforms expressing support for the “Fight for $15” campaign, which seeks a national $15-an-hour minimum wage. In-N-Out had an employee handbook policy on employee uniforms at the time that required its employees to dress in a unique way: white pants, white shirt, white socks, black shoes, black belt, red apron, gold apron pin, company-issued name tag, and hat. The policy also prohibited wearing any pins or stickers.
In-N-Out managers required the employees wearing the Fight for $15 pins to remove them. The employees complied and filed an unfair labor practice charge. The Labor Board, and the Fifth Circuit, found that the employees had a right to wear the pins, despite In-N-Out’s two arguments:
First, In-N-Out argued that the pins clashed with a uniform that furthers In-N-Out’s unique public image of simplicity and cleanliness, and that adding buttons to the uniform hurt that image. The Board and court rejected the public-image argument, stating that the buttons had not been shown to disrupt the image sufficiently and in part because In-N-Out required employees to wear other buttons at Christmas and during an annual charity drive.
Second, In-N-Out argued that the pins created a food-safety danger, including because the Fight for $15 pins were smaller than the company-required Christmas and charity pins. The Labor Board and court rejected this argument because In-N-Out had not shown the danger sufficiently, the handbook prohibition on buttons was for all buttons (not just small ones that could fall into food unnoticed), and the company did not investigate the buttons for safety issues before requiring the employees to remove them.
The upshot is that the National Labor Relations Board—including under the new administration—and the Fifth Circuit continue to require employers to allow workers to express opinions on their working conditions. And those requirements exist whether or not the employees are unionized. There are certain exceptions that can apply, including special circumstances like safety and for patient-facing healthcare workers, but those exceptions must be followed precisely, and relying on them can be complicated. Employers should seek advice before drafting or enforcing policies that restrict employees from expression of opinions like this, even when those employees work in jobs where they interact with customers or patients.