13 Oct NLRB ROLLS BACK TRUMP-ERA DRESS CODE STANDARD: NEUTRAL DRESS POLICIES NOW PRESUMPTIVELY UNLAWFUL
In its August 29, 2022, Tesla, Inc. decision, the National Labor Relations Board (“Board”) held that Tesla’s employee dress code violated Section 7 of the National Labor Relations Act (“NLRA”). Under Section 7, employees have a right to communicate with one another about union organizing. Generally speaking, this right extends to displaying union insignia while working. In Tesla’s case, the company implemented its formal dress code following a union organizing campaign where multiple employees began wearing pro-union attire to work. Tesla’s new dress code required employees to wear company-issued shirts emblazoned with the company’s logo, and employees who violated the policy faced potential discipline.
The Board, in finding that Tesla’s new dress code was unlawful, cited the U.S. Supreme Court’s 1945 Republic Aviation Corp v. NLRB decision and its holding that “special circumstances” must exist for an employer to justify restricting an employee’s right to display union insignia in the workplace. Based on this precedent, and related caselaw, the Board determined that, “when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.” More to the point, the Board said “[A]ny attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and – consistent with Supreme Court precedent – an employer has a heightened burden to justify attempts to limit this important right.” According to the Board, this was a test that Tesla’s facially neutral dress code could not pass.
The Tesla decision reflects the Board’s ongoing efforts to reform workplace legal standards to benefit unions. Specifically, the Tesla decision overrules the 2019 Wal-Mart standard, which gave employers more flexibility to regulate union insignia in the workplace. Indeed, the employer-friendly Wal‑Mart standard only applied the “special circumstances” test when an employer totally prohibited union insignia in the workplace. It also permitted size-and-appearance type restrictions on union insignia when based on legitimate employer interests. In contrast, the Tesla decision resurrects the nearly eighty‑year‑old Republic Aviation standard and its requirement that employers who restrict an employee’s right to display union insignia “in any way” must demonstrate “special circumstances” justifying that policy.
As noted by the dissenting members of the Board, the Tesla decision could render most employer dress codes unlawful simply because those policies could be interpreted as chilling an employee’s ability to display union insignia in the workplace. Accordingly, employers covered by the NLRA who maintain dress codes or uniform requirements should be prepared to face an increase in unfair labor practice charges challenging those policies moving forward. Such employers would also be wise to begin compiling evidence to support an objective, legitimate basis, i.e., a “special circumstance,” justifying their dress code policies. Employers seeking more information about the Board’s Tesla decision, or any other employment matters, should contact the Masud Labor Law Group with any questions.