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Uniform Rules Now Unlawful? Not Quite, but Employers Beware
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In the case cited above, the company operated an assembly factory for which it maintained specific uniform requirements through the company's "Team Wear" policy. Under the policy, production associates and leads had to wear company-issued cotton shirts and pants to ensure clothing was "mutilation-free" (e.g., no buttons, zippers, pins). Associates wore black shirts so that they were easy to identify on the floor. The company-issued shirt had the company logo. On occasion, the company would allow an employee to wear an all-black, plain cotton shirt, so long as it was mutilation-free and had no other designs or logos.
In 2017, during a union organizing campaign, employees started wearing black cotton shirts with a union insignia on the front and back. In accordance with its Team Wear policy, supervisors instructed employees that they could not wear the black shirts with the union insignia. Importantly, the company did not prohibit employees from wearing union stickers on their company-issued shirts. The union filed an unfair labor practice charge, alleging that the Team Wear policy violated the National Labor Relations Act (the "Act").
The Board, in a 3-2 decision, found that the policy itself was unlawful. It explained that "any limitation on the display of union insignia is presumptively unlawful regardless of whether an employer permits other related Section 7 activity." Maintaining a policy that "implicitly" prohibits union insignia, such as a policy requiring employees to wear specific company-issued uniforms, violates the Act, unless the employer can prove special circumstances. While visual identification (e.g., uniform color) and preventing damage to products (e.g., requiring mutilation-free clothing) can constitute "special circumstances," the Board found that the company did not prove that the Team Wear policy was "narrowly tailored" to respond to a special circumstance. Managers could still visually identify associates because they were wearing black, and there was no evidence that shirts with the flat, union logos had ever damaged any vehicle.
In a sign of times to come, the Board also chipped away at the current standards generally governing workplace policies. As we previously reported, in 2017, the Board under the Trump administration established the
In Tesla, the Board expressly held that the
What This Means for Employers
This decision applies retroactively, so it is vital that employers, particularly those with very strict uniform policies or company-issued uniforms, assess their current uniform rules as soon as possible. When evaluating uniform requirements, employers should consider whether there are "special circumstances" justifying any restrictions that could interfere with an employee's ability to display union insignia. Employers must also ensure that any such restrictions are "narrowly tailored" to those special circumstances.
As an example of the broad reach of this decision, requiring employees to wear a company-issued hat with the employer's logo could now be found to implicitly interfere with the employee's right to wear a hat with a union logo. While many employers have maintained this type of policy in the past without second thought, this new holding means that even the most standard uniform requirements require a fact-intensive inquiry. Consulting legal counsel is the best way to determine what, if any, policy modifications may be necessary.
As a reminder, the Act applies regardless of whether the employees are in a union or are participating in a union organizing drive. Further, protected employee speech is not just limited to union insignia. While union-related messaging has special protections, employees generally have a right to engage in a broad range of speech that is related to their working conditions. As explained in the next section, the Board continues to expand what constitutes protected speech.
Can an Employer Discipline an Employee for Using Vulgar Language? It Depends
In Constellium Rolled Products, 371 N.L.R.B. No. 16 (2021) the Board was confronted by a possible conflict between the National Labor Relations Act and anti-discrimination laws. An employee openly defaced the employer's overtime sign-up sheet with the phrase "whore board." The employer discharged the employee for the insubordinate conduct of vandalizing company property with vulgar, gender-discriminatory language in violation of the company's anti-harassment policy. The employee's union filed a charge with the Board, alleging that the employee's conduct was protected by Section 7 of the Act. The Board agreed and held that the discharge violated the Act. The employer appealed to the
In its second go-around, the Board convinced the Court that despite the offensive and gendered language, the Board could sufficiently address the conflict between an employer's anti-discrimination obligations and employee rights under the Act by applying the test it traditionally uses to resolve whether the discipline/discharge of an employee was due to union animus. Notably,
What This Means for Employers
Under Section 7 of the Act, employees have "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." (Emphasis added.) The conflict between employees' rights to engage in protected activities and employers' obligations to maintain a workplace free of unlawful discrimination and hostility are not new. That said, the fact that an employer could face liability for disciplining an employee who uses racially harassing or vulgar, sexist language while engaged in an activity protected by Section 7 of the Act means that employers must take special care when resolving these conflicting principles of the law.
For example, what should an employer do if an employee insults their supervisor in a social media post because the employee is unhappy about a general pay raise, and uses a racist epithet in the process? What if a group of employees are in the break room complaining about mandatory overtime, and start referring to the plant manager in a sexually offensive manner?
Here are some general guidelines to avoid the mistakes that employers can make in these situations:
- Apply civility rules consistently and fairly. If an employer can show that it disciplined other employees for similar misconduct outside the context of activity protected by the Act, it will be more difficult to prove that the employee's concerted activity was the motivating cause for the employer's response.
- Train supervisors and managers to recognize potential Section 7 activity and when to involve senior managers in making decisions.
- Take a step back to assess the situation. Reach out to counsel when in doubt. When employee misconduct involves abusive or vulgar language, employers want to move quickly, lest it foments other complaints. However, when it comes to potential protected activity, it is important to analyze all sides of the issue and obtain all of the facts so that a well-thought-out decision can be made.
- Take care to avoid doing anything that can indicate that the decision was driven by union animus.
Are Temporary Employees Supplied by a Staffing Agency Your Employees? The Board's Proposed Rule May Say They Are
On
Companies utilize workers supplied by another employer for a variety of reasons, such as contracting with a staffing company or temp agency to supplement their workforce during busy times or engaging subcontractors to perform certain functions on a permanent basis, like IT or human resources. Whether a company is a joint employer of these workers will determine whether the company is liable for actions and inactions of the supplier of the worker.
Under the Trump-era rule, which went into effect
The Board's proposed rule would substantially broaden the circumstances under which a host company is deemed a joint employer of a worker supplied by another company. As proposed, the rule would redefine "joint employer" as an entity that possesses or has retained the authority to control, whether directly, indirectly or both, one or more of the employee's essential terms and conditions of employment, regardless of whether the control is actually exercised. This could be as simple as having the authority to assign the worker's shifts or schedule.
Importantly, the proposed rule also expands the definition of "essential terms and conditions of employment" to include workplace health and safety. The proposed rule does not exempt health and safety conditions mandated by the Occupational Safety and Health Act, putting every host employer at risk of being found to be a joint employer. Consequently, workers who are presently considered to be employed solely by another employer (e.g., staffing company) would be entitled to the protections of Section 7 of the Act, including the right to engaged in concerted activity, such as unionization.
What This Means for Employers
While the Board may revise the proposed rule in response the public feedback, companies and employers should anticipate that the final rule will make the possession or retention of the indirect right of control over at least one of the terms or conditions of a worker's employment sufficient to establish a joint employer relationship. Although we cannot predict when the Board will release its final rule, companies should begin evaluating (and revising as necessary) contracts, policies and conduct that could make it the joint employer of workers it presently considers employees of another company. Employers should also consider sending to the Board its comments regarding the proposed rule. The deadline to submit comments is
Board law is often a barometer for other federal agencies, such as the
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