A federal court invalidated an NLRB decision that significantly limited employer uniform policies and dress codes. The Association submitted an amicus brief in the case urging the court to reject the NLRB decision.
Why it matters: The Board’s decision made it nearly impossible for an employer to adopt and enforce any meaningful dress code or uniform policy. The Court held that the Board’s standard does not adequately balance legitimate employer interests against employee rights.
The Fifth Circuit rejected the Board’s decision and its new uniform standard. Echoing arguments made in our amicus brief, the Court held that the Board’s standard does not adequately balance legitimate employer interests against employee rights. Instead, the standard inappropriately “elevated employee interests at the expense of legitimate employer interests.”
Background: The case, Tesla, Inc., involved employees who were substituting union clothing for the employer’s required company uniform. The Board found the uniform policy to be unlawful, and in doing so, overturned precedent and established a new, much stricter standard for evaluating employer uniform policies and dress codes under federal labor law. Under that standard, the Board will find that any uniform policy that in any way restricts an employee’s ability to wear union apparel is presumptively unlawful.
Backstop to runaway Board policy changes: The result highlights the potential of federal courts to thwart Board policy changes that have come fast and furious over the last year. The Tesla case was one of the first major precedent reversals by the current Board, and the Fifth Circuit’s rejection here raises the possibility that several other actions by the Board – on card check recognition, joint employer liability, workplace rules, and independent contractor status, for example – could meet similar fates.
Outlook: The Fifth Circuit decision technically only nullifies the Board’s uniform policy standard within that Circuit’s jurisdiction. However, historically, federal court decisions overturning Board policies often chill their application even in cases outside of that jurisdiction. It remains to be seen whether this decision will deter General Counsel Abruzzo from prosecuting uniform cases in other jurisdictions under the standard rejected by the Fifth Circuit.
