Button Bans – Be Careful

by Foley & Lardner LLP
Contact

Employers often implement dress code policies and practices which prohibit employees from wearing all types of buttons or insignia in the workplace. These kinds of policies may be put in place for customer relations, appearance or other purposes. Unfortunately, such a policy runs a significant risk of being found as illegal by the National Labor Relations Board (NLRB). The NLRB, with frequent support from the courts, has long held that employees have the absolute right to wear union-related buttons or other insignia in the workplace, although limited exceptions may be carved out where extraordinary “special circumstances” exist. The Board’s view has been that employees have the right to express their views about union issues through wearing buttons or other insignia – even where the employer consistently bans all other forms and types of these items from the workplace.

Making matters even more dicey for employers is the fact that the exception for “special circumstances” has proven to be limited and difficult to satisfy. The NLRB has held that union related buttons or insignia may be limited or banned only where such items unreasonably and negatively impact concerns such as: 1) employee safety, 2) the employer’s public image, or 3) the employer’s relationship with its clientele. Additionally, as we recently discussed in “Busted by Buttons,” the Board has long held that health care employers may ban all union related buttons and insignia in immediate patient care areas in order to protect patients and insure that they are not negatively affected by the messages such buttons or insignia might carry.

Recent NLRB decisions also indicate that before employers can utilize the “special circumstances” exception and ban otherwise permissible union-related buttons, they must establish with objective and compelling evidence that they meet the established standards for that exception. Employers cannot simply presume that union buttons or insignia are negatively impacting their customer relations or public image – they must have definitive and objective proof that they are actually having that kind of impact. In fact, the Board repeatedly has made clear that the simple fact that an employer’s customers are exposed to union-related buttons or insignia worn by employees is insufficient to meet the “special circumstances” exception.

The upshot of all this is that policies which place a complete ban on all buttons and insignia in the workplace – even if those policies are uniformly enforced without exception – are likely to be found illegal by the NLRB unless an employer has strong evidence that it meets the “special circumstances” exception. Furthermore, taking action against employees who may be wearing union-related buttons or insignia in violation of such a policy is a recipe for a Board finding that the employer has violated employees’ right to express their views in the workplace about union matters, Before taking any action against employees wearing union-related insignia or buttons in the workplace – even in the face of a clear and uniformly enforced policy banning such items – employers need to determine whether they meet the special circumstances standard developed by the NLRB. This is best done by thoroughly reviewing all facts and circumstances involved before any action is taken.

In addition to implementing button and other insignia policies which meet NLRB established standards, employers are also well advised to require consistent enforcement of their button and insignia requirements. Where such requirements are selectively enforced, or enforced against union-related items only, the likelihood of an adverse Board ruling if contested is that much greater. This is true even where an employer can present convincing evidence that its policy meets the special circumstances standard. For example, a factory with heavy machinery may have a good argument to make that employees should not wear anything on their clothes because of employee safety concerns, potentially qualifying as a special circumstance. However, if employees in that factory are allowed to wear buttons for social or political purposes – but are not allowed to wear union-related buttons – the NLRB is almost certain to find that such a selective enforcement of an otherwise valid policy is illegal. For that very reason, employers are also well advised to take stock of existing practices relating to buttons and insignia in the workplace before taking any action against employees wearing union related items.

The NLRB continues to demonstrate that it will go to great lengths to protect employees’ right to express their views about union-related matters by wearing buttons or insignia at work. Employers are well advised to review their dress code or other policies, as well as their existing practices, in order to insure that they meet NLRB requirements.

View This Blog

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP
Contact
more
less

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.