The Association filed an amicus brief with the Fifth Circuit Court of Appeals in a Board case involving employer dress codes, arguing that the Board’s new standard for evaluating such dress codes as established in the case inappropriately subordinates employer rights in violation of federal labor law. The case represents the first of many likely court challenges to significant Board decisions.
Background: The case, Tesla, Inc., involved an employer’s uniform policy that generally required employees to wear company-branded clothing, while also allowing employees to wear union insignia in the form of stickers on such clothing. The company disciplined two employees for violating the policy by substituting union t-shirts for the company-branded shirts.
In its decision issued this past September, the Board found the policy to be unlawful because it restricted employees’ rights to wear union clothing in the workplace, and established a new standard for evaluating employer workplace clothing policies under which a uniform policy or dress code that in any way restricts an employee’s ability to wear union apparel is presumptively unlawful. This presumption can only be overcome if the employer can show “special circumstances” justifying such restrictions – in practice an extremely high bar for employers to clear, and one that was left vaguely defined by the current Board. Tesla then appealed the decision to the Fifth Circuit Court of Appeals.
In our brief, the Association argued that the Board’s new standard inappropriately subordinates employer rights to maintain productivity and discipline in the workplace to employee rights to protected concerted activity, rather than balancing both such rights equally as required under the National Labor Relations Act. The brief also argued that the Board’s standard deviates from established precedent, and in practice would prohibit employers from maintaining and enforcing any sort of meaningful dress code or uniform policy.
Outlook: The case is the first of many likely court challenges to significant Board decisions, with the employer community hoping for federal courts to act as a backstop to overreaching Board decisions. HR Policy will continue to engage on important NLRB issues and challenge Board decisions in federal court when necessary.
