September 6, 2022
On August 29, 2022, the National Labor Relations Board (“the Board”) issued its decision in Tesla, Inc., and overturned the precedent set by a 2019 ruling regarding dress code policies at Wal-Mart, where the employer was able to lawfully limit an employee’s ability to wear union insignia at work.
Tesla maintained a workplace policy that limited employees on what they could wear during working hours. Employees could only wear plain black t-shirts or t-shirts with Tesla’s logo on them, which functionally prohibited wearing shirts bearing union logos or any other logo. In finding this dress code unlawful, the Board held that when an employer interferes in any way with its employees’ rights to display union insignia, the employer must prove special circumstances that justify the interference. This rolls back the 2019 decision, which provided that employers could limit the size and appearance of union logos based on a broader category of employer interests than those in the special circumstances test.
Under the Tesla decision, any restrictions on an employee’s ability to display union insignia is presumed unlawful in the absence of a showing of special circumstances requiring limitation of certain displays by the employer, generally related to safety and industrial efficiencies. An employer may not avoid the limitation on union (or other) displays simply by requiring employees to wear uniforms, designated clothing, or by enforcing a dress code because these may be implicitly prohibiting union insignia.
The Board’s decision may limit an employer’s ability to adopt and enforce neutral dress codes that may impact the ability to wear union insignia. Every employer should review their dress code policies based on these changed circumstances. Employers should also work to identify and note special circumstances that may exist in relation to uniform standards in the workplace. As always, Bullard attorneys are available to assist with any questions related to these issues and how to navigate workplace considerations based on this recent decision or any other employment or labor-law related questions.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.