Many Texas employers require employees to wear uniforms. Generally, this is an accepted practice. However, as a recent federal appellate decision illustrates, employers may not be able to prevent an employee from wearing a pin or badge that relates to an employee’s ability to collectively bargain.
The Facts of the Case
This case involved an employee at a popular burger chain In-N-Out Burger. The restaurant had a strict uniform policy and prohibited employees from wearing any “stickers or pins” on their uniform. The employee was an hourly worker and wore a pin on his uniform stating “Fight for $15.” The employee wore the pin in support of a national campaign to increase the federal minimum wage to 15 dollars an hour.
The employee’s manager instructed the employee to remove the pin. The employee complied, but told the manager that he would be pursuing an unfair labor practice claim against the employer.
The National Labor Relations Act (NLRA) guarantees employees, among other things, the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The act provides for the enforcement making it an unfair labor practice for an employer to interfere with these rights.
Back to the Case
The employee argued that by prohibiting employees from wearing the pin, which relates to a condition of employment, the company’s no-pin policy was presumptively invalid. In response, the employer claimed the “special circumstances” of maintaining food safety and preserving the company’s public image warranted the no-pin policy.
Finding that the no-pin policy was presumptively invalid, the court was then tasked with determining if the company’s reasons for the policy were sufficient to warrant an exception. The court concluded they were not.
The court explained the “special circumstances” exception is narrow and applies in limited situations, including when an employee’s display of an item would: 1) jeopardize employee safety, 2) damage machinery or product, 3) exacerbate employee dissension, and 4) “unreasonably interfere with a public image that the employer has established.” The court noted that the fourth exception is “exceedingly narrow,” and only rarely applied to allow regulation of a protected item.
Here, the court was unconvinced by the employer that either of its cited reasons rose to the level of a “special circumstance” that justified the no-pin policy. The court concluded the In-N-Out’s image of consistency, cleanliness, and service was not threatened by employees wearing the “Fight for $15” pin.
The court also rejected In-N-Out’s argument that the policy was justified because an employee’s pin could fall into a customer’s food. The court explained that, even if that was the employer’s interest in creating the policy, there was no indication that the policy was narrowly tailored to effectuate that purpose. The court also pointed out that the employer never inspected the pins to see if they presented any risk of coming unpinned, leading the court to believe that this argument was a “post hoc invention.”
Has Your Right to Organize Been Restricted?
If your employer has told you that you cannot organize with fellow employees, or you have faced a similar curtailment of your rights while at work, contact the dedicated Texas employment law attorneys at Rob Wiley, P.C. We have extensive experience assisting Texas employees in pursuit of their claims. To learn more about how we can help you with your situation, call 214-528-6500 to schedule a consultation.
More Blog Posts:
What Is First Amendment Retaliation and How Can an Employee Bring a Claim of Retaliation?, Dallas Employment Lawyer Blog, January 10, 2019.
Are All Texas Employment Contracts Enforceable?, Dallas Employment Lawyer Blog, January 17, 2019.