The National Labor Relations Board recently determined that In-N-Out Burger violated the National Labor Relations Act by maintaining and enforcing a work rule prohibiting employees from wearing any type of unauthorized buttons or insignia on their uniforms.
 
The underlying allegation in In-N-Out Burger, Inc., 365 NLRB 39, spawned from a manager instructing an employee to remove a “Fight for $15” button from his uniform in order to comply with the abovementioned work rule. For reference, “Fight for $15” is a union-sponsored effort pushing for, among other things, workers in the quick-service restaurant and other related industries to be paid a minimum of $15 per hour.
 
In finding that In-N-Out’s actions violated the Act, the Board reaffirmed its general rule that an employer cannot prohibit its employees from wearing union buttons or similar attire in the workplace. The Board treats any rule that does not allow employees to wear union insignia while working as presumptively unlawful. That said, an employer who issues such a rule can overcome this presumption by showing that special circumstances warrant the rule and that the rule is being narrowly tailored to those special circumstances.
 
Such special circumstances can include situations where permitting such attire undermines employee safety, causes damage to goods or machinery, intensifies employee dissension, or unreasonably interferes with a public image that an employer has consistently and genuinely attempted to foster.
 
In-N-Out advanced both food safety and public image arguments in support of its ban on unauthorized buttons and other insignia in the workplace. In ultimately rejecting these arguments, the Board noted that all instances where special circumstances were found involved unusual facts and that the situation at hand simply did not rise to the necessary level for such a finding. The Board’s ruling stands as a reminder to employers to be extremely cautious when adopting any rule that infringes upon employees’ ability to wear union insignia at the workplace. California public agency employers should note that the Public Employment Relations Board has adopted the NLRB standard.

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