Button Bans – Be Careful

by Foley & Lardner LLP

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.

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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.

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