Handbook Alert – NLRB Reverses Course On The Display Of Union Insignia

Volume: 21 | Issue: 40
September 15, 2022

The National Labor Relations Board (Board) recently issued a decision that once again changes the law on employer dress code and uniform policies. In the case of Tesla, Inc., the Board ruled that any restriction on an employee’s right to display union insignia is presumptively unlawful. An employer can restrict this right only in special circumstances with a narrowly tailored rule.

Tesla required its employees to wear clothing in certain colors with the company logo and prohibited employees from wearing other logos or insignia. The Board determined that this policy was unlawful and that Tesla failed to show that special circumstances justified a prohibition against a union t-shirt that otherwise matched the company’s color scheme. The Board reversed an earlier case concerning Walmart’s dress code, issued by the Board during the Trump administration, which did not require an employer to show special circumstances if its dress code was neutral and non-discriminatory.

Employers need to understand that all employees (including public contact employees) have the right to display union insignia. Under the Board’s current test, this right can be restricted only in special circumstances and only with a narrowly tailored rule – one that is designed as narrowly as possible to meet the precise special circumstance at issue. Special circumstances may include safety, damage to machinery or products, and the need to prohibit messages that are inflammatory.

We recommend that you review your dress code and uniform policies and how those policies are applied in relation to union insignia to determine if changes are needed. KZA attorneys are available to help you with this analysis. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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