The National Labor Relations Board (the “Board”) recently held that a California hospital illegally maintained a dress code policy that effectively prohibited employees from wearing pins and badge reels with union insignia. The hospital’s policy at issue required that “[o]nly [employer] approved pins, badges, and professional certifications may be worn.” In addition, employees were only permitted to wear identification badge reels with “approved logos or text.”
Generally speaking, employees in most workplaces have a protected right to wear union insignia at work in the absence of “special circumstances” under the National Labor Relations Act (“NLRA”). The Board has found such “special circumstances” to justify restrictions on union apparel only when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, unreasonably interfere with the employer’s public image, or when necessary to maintain decorum and discipline among employees.
Historically, healthcare facilities have been granted more flexibility to limit union insignia to due to concerns relating to the disruption of patient care. In immediate patient care areas of a healthcare facility, restrictions on wearing union insignia are generally lawful. In contrast, restrictions on wearing union insignia in non-patient care areas are generally unlawful unless the employer can demonstrate that the restriction is necessary to avoid disruption of healthcare operations or disturbance of patients.
In the recent Board decision, Long Beach Memorial Medical Center, 366 NLRB No. 66 (April 20, 2018), the dress code restrictions applied to all areas of the hospital, including non-patient care areas, and there was no evidence showing that employees in any way disrupted healthcare operations or disturbed patients by wearing the badge reels with union insignia. The Board noted that customer exposure to union insignia, standing alone, is not a “special circumstance” which permits an employer to prohibit display of such insignia nor is the requirement that employees wear a standardized uniform. For these reasons, maintenance of the dress code policies was deemed to be in violation of the NLRA.
In a dissenting opinion, Board Member Emanuel argued that the hospital’s neutral uniform policy should constitute a “special circumstance” that is strong enough to overcome an employee’s right to engage in protected activity under the NLRA, in part because the rules are intended to prevent infections, insure that patients can readily identify their healthcare providers, and promote an image of high quality health care services. Emanuel’s dissenting opinion suggests that the now Republican-majority Board may be more receptive to arguments that uniform policies constitute special circumstances sufficient to justify prohibitions on union insignia in the workplace.
Healthcare employers should carefully review their dress code policies and procedures for compliance with the NLRA.
