Tag Archives: dress code

The NLRB’s Latest Target? Dress Codes and Already Rescinded Policies

Contributed by Suzanne Newcomb, July 13, 2016

The Federal Court of Appeals for the First Circuit recently upheld a National Labor Relations Board decision finding a car dealership’s dress code ban on “pins, insignias, and message clothing” was, in and of itself, an unfair labor practice. The case is another in a long line of NLRB decisions striking down policies as unfair labor practices because, the board claims, employees might interpret them as infringing upon their right to unionize or engage in other concerted activity protected by Section 7 of the National Labor Relations Act.

The board concluded the dealership’s interest in maintaining its public image did not justify the outright ban. Adding insult to injury, the Board found a second violation for the dealership’s failure to properly repudiate overly restrictive policies contained in an earlier version of its handbook.

Employee handbookThe NLRB had earlier challenged several provisions in the dealership’s handbook. The dealership worked closely with the NLRB to draft new NLRA-compliant policies and issued a whole new handbook. In fact, the NLRB’s own General Counsel stipulated that, with the exception of the dress code policy, the new handbook was NLRA-compliant. So, even though the employer rescinded the offending policies and replaced them with policies the NLRB explicitly approved, the employer was still found to have engaged in an unfair labor practice because it had previously maintained policies the Board viewed as overly restrictive and the employer did not properly repudiate those policies.

The Board ordered the employer to issue a notice that specifically addressed the policies it found to be unlawful, advised employees of their Section 7 rights, and assured employees there would be no future interference with those rights. The Federal Appeals Court upheld the Board’s ruling, concluding that to be relieved of liability for unlawfully restrictive policies, even policies that have since been discontinued or appropriately revised, an employer must “signal unambiguously to employees that it recognizes it has acted wrongfully, that it respects their Section 7 rights, and that it will not interfere with those rights again.”

Notably, no employees were alleged to have actually suffered discipline or any other adverse action under the ban. The policies alone formed the basis for finding the employer liable for two distinct unfair labor practices.

In light of the NLRB’s aggressive approach, employers are again reminded to review handbooks and employment policies regularly. Anything the Board believes employees could reasonably interpret as improperly constraining Section 7 activity could form the basis for an unfair labor charge. If any of your policies are questionable, consult legal counsel to determine how best to revise those policies to bring them into compliance and, if necessary, to devise a strategy to effectively repudiate any policies that run afoul of the Board’s broad interpretation of Section 7 rights.

“No, You Can’t Wear That”—D.C. Circuit Sets Important Limitation On Union Apparel in the Workplace

Contributed by Steven Jados

In the opening sentence of its recent decision, Southern New England Telephone Co. v. NLRB, the federal D.C. Circuit Court of Appeals stated: “Common sense sometimes matters in resolving legal disputes.” If only that were always true in labor disputes.

The legal dispute in this matter centered on the fact that the company prohibited publicly visible employees—those who had direct contact with customers or the public—from wearing union t-shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. These shirts were part of a campaign by the union representing certain company employees to apply bargaining pressure in the midst of contentious contract negotiations. Notably, the company did allow the shirts to be worn by employees who were not publicly visible.

Common sense says it is less-than-ideal to have your customers and prospects think that you imprison your employees—metaphorically or otherwise.

43200054_sGenerally speaking, however, the National Labor Relations Act protects union members’ rights to wear clothing with union logos and slogans in the workplace. In light of the NLRB’s efforts to expand its reach into non-union workplaces, that same protection conceivably extends to articles of clothing linked to concerted activities relating to wages and working conditions, regardless of whether the clothing is worn by union or non-union employees.

Relying on that generalized protection, prior to this matter reaching the D.C. Circuit, the NLRB ruled that the company acted unlawfully by prohibiting employees from wearing the “prisoner” shirts, and suspending employees who refused to comply with the prohibition.

The D.C. Circuit, however, cited the “special circumstances” exception to the generalized protection favoring union apparel, and stated that this exception allows employers to stop employees “from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.” In applying that exception to the union’s “prisoner” shirts, the court reinforced the strength and significance of an employer’s concerns of potential damage to customer relationships. Such concerns may outweigh employees’ rights on the subject of union apparel.

All of that said, the bottom line here is that companies do have some rights when it comes to limiting union apparel in the workplace. However, companies must tread carefully when attempting to impose apparel rules because the “special circumstances” exemption will not apply in every case. Common sense eventually prevailed in this matter, but that happened only after a lengthy legal battle that lasted more than five years.

Tattoos, Facial Piercings, Ear Gauges? What’s an Employer to Do?

Contributed by Suzanne Newcomb

In the past, dress codes were straightforward. Depending on the nature of the business, they required a “neat, clean uniform” or perhaps “professional attire” and banned tube tops and flip flops. But as visible body art becomes more mainstream, many employers find themselves struggling to decide whether and where to draw the lines when drafting a personal appearance policy that works for their business.

As a starting point, body art itself is not a legally protected characteristic so bans are generally permissible. However, employers should be mindful that some tattoos, piercings, and other body adornments could have religious or cultural roots.  Accordingly, employers must ensure their policies do not adversely impact a particular ethnic or religious group and should take seriously requests to accommodate religious beliefs.

Back in 2004 a federal appeals court dismissed claims brought by a member of the Church of Body Modification finding that accommodating her multiple facial piercings imposed an undue hardship because it could adversely affect the employer’s public image. Since then, district courts have found that a restaurant employee who claimed covering his tattoo amounted to sacrilege; an employee who refused to remove her allegedly religious nose ring; and a Rastafarian who was moved to a non-customer contact position after refusing to cut his hair, all presented potentially viable claims warranting jury trials.

It is tough to say whether the tide is turning. Nevertheless, it is an issue many employers deal with on a regular basis.

Best practices for drafting an effective and workable personal appearance policy:

  1. Really think about what you will tolerate and why. Will you hire an employee with a visible tattoo? What if the tattoo is on her face? Might a total ban exclude applicants who would be a great asset for your business? Is there an alternative to a total ban that makes more sense? What about ear gauges and tunnels?
  2. Be prepared to justify the reasoning behind any bans or limits you decide are best for your business. Is the policy rooted in concern for the company’s public image? Fear of customer reaction? Safety or sanitation concerns?
  3. Consider whether the policy might look different for different segments of your workforce. One size fits all might not make the most sense here.
  4. Most importantly, as the cases referenced above demonstrate, employers must take claims for accommodation of religious beliefs seriously and engage in an interactive process to determine whether a workable accommodation exists if an employee or applicant claims conforming to the policy would infringe upon his religious beliefs.