“No Flair! Is That Fair? Fifth Circuit Overturns Burger Joint’s Ban on Buttons”Many of us remember the classic scene from “Office Space” where Jennifer Aniston’s waitress character was chastised for not having enough “flair”—whimsical buttons on her uniform. The Fifth Circuit recently addressed the exact opposite situation: In-N-Out Burger sought to enforce a policy which forbids employees from sporting any buttons on their uniforms. What types of buttons go too far, if any? What size buttons are a problem? Is it true that a button could fall in my burger? The Fifth Circuit opinion examines all of these questions.

Button, Button, Who’s Wearing a Button?

This case arises out of the In-N-Out Burger restaurant in Austin, Texas. In-N-Out is a chain of burger restaurants found primarily out west. In-N-Out has a uniform policy requiring that all of its employees wear white pants, white shirt, white socks, black shoes, black belt, red apron, gold apron pin, company-issued name tag and a hat. The policy also specifically states that “wearing any type of pin or stickers is not permitted.”

In 2015, Amanda Healy appeared for her shift at In-N-Out wearing a “Fight for $15” button, which referred to a campaign by fast-food workers seeking higher wages. The next day, another employee, Brad Crowder, also showed up wearing the same type of button. The general manager told Crowder to remove the button because it violated the uniform policy. Crowder removed the button but also filed an unfair labor practice charge with the National Labor Relations Board claiming that the policy violated his rights under Section 7 of the National Labor Relations Act. That section protects the right of employees to wear items such as pins, buttons and stickers relating to wages, conditions of employment, unionization and other matters.

At the NLRB hearing, In-N-Out argued that there were “special circumstances” that justified its ban on buttons: 1) They have an interest in maintaining a unique public image, and 2) that the buttons could cause concern about food safety. The Administrative Law Judge and the NLRB ultimately rejected that argument, and In-N-Out then appealed to the Fifth Circuit.

Fifth Circuit Button Discussion

The Fifth Circuit noted the long history of Section 7 being used to allow workers to wear pins and buttons in the workplace to support union activity and complaints about conditions of employment. The court then looked to see if In-N-Out could show that it had met the narrow exception to the rule by demonstrating that there were special circumstances sufficient to outweigh the workers’ right to wear the pins. Past examples of these types of “special circumstances” included showing how the protected items would:  1) jeopardize employee safety; 2) damage machinery or products; 3) exacerbate employee dissension; or 4) unreasonably interfere with a public image that the employer has established. These exceptions have to be narrowly tailored and supported by substantial, non-speculative evidence.

In-N-Out claimed that the “no button” rule was part of its attempt to maintain a consistent public image across all stores through its uniform policy. However, the court found that this argument was significantly undercut by the fact that the restaurant chain specifically required its employees to wear company-issued buttons twice a year—once at Christmas time and again during a company-wide fundraiser. The fact that In-N-Out required buttons and that the use of the buttons during these two instances changed employees’ “consistent public image” caused the Fifth Circuit to find that the policy did not meet the special circumstances exception.

Next, In-N-Out argued that the button ban was a food safety concern. They said that the “Fight for $15” buttons were small and lightweight and that an employee might not notice if it fell off of the uniform and into a customer’s food. The court noted that this concern apparently didn’t apply to In-N-Out’s own buttons and that the restaurant chain failed to present any substantial evidence that its health concerns were valid. As such, the Fifth Circuit also rejected this defense and upheld the NLRB decision that the button ban violated Section 7.

So What about Buttons?

As this decision indicates, there is a long history of protecting a worker’s right to wear a union pin or a button protesting a certain work practice. Employers who choose to ban their workers from wearing buttons should be sure that they have significant evidence to back up their argument of special circumstances. The list above provides a good starting point, but it is a heavy burden.

Combining Classrooms and Class Actions: Trump Proposes Combining Labor and Education DepartmentsCould the Department of Labor (DOL) and Department of Education (DOE) possibly merge in the near future? President Trump thinks so and recently announced his desire to combine the two departments into a single federal agency to be called the Department of Education and the Workforce. According to a White House Statement, the new agency would be “charged with meeting the needs of American students and workers from education and skill development to workplace protection to retirement security.” The proposed restructuring would provide for four sub-agencies: K-12, Higher Education/Workforce Development, Enforcement, and Research/Evaluation.

Current Status

DOE is the smallest cabinet agency with just under 4,000 employees and a $68 billion budget, and oversees federal student loans, distributes K-12 education funding, and enforces civil rights laws at colleges. DOL, by contrast, has about 15,000 employees and a $13 billion budget to support its broad agenda of training programs, enforcement of wage and safety laws, and the Bureau of Labor Statistics.

The proposal is part of a larger plan by the administration to reorganize and reduce the size of federal government agencies. Other combinations of sections of federal agencies have been discussed by the OMB, which itself may have a shrinking role.

Reactions to the Proposal

Not surprisingly, reaction to the proposed combination has been mixed. Current administration members support it. Secretary of Education Betsy DeVos promoted the idea to help break down “artificial barriers” between education and career development. Mick Mulvaney, director of the federal OMB, spoke in favor of the plan to reduce the size of the federal government which he described as “bloated, opaque, bureaucratic, and inefficient.”

Opponents say it would be a bad idea. Chris Lu, a former Deputy Secretary of Labor under President Obama, pointed out that only parts of the two agencies deal with worker training because most of DOL consists of enforcement agencies such as OSHA, MSHA, Wage & Hour, and OFCCP that were created to protect workers. The National Employment Law Project (a union-backed think tank) denounced the proposal as a “half-baked idea” that would only betray the workers for whom President Trump pledged to advocate.

Members of the business community may welcome entities such as OSHA and MSHA falling under the DOE, which has a more educational (and less enforcement-oriented) focus.

Likely to Happen?

Odds of the combination actually coming to fruition seem unlikely. Congress has to approve a major reorganization of cabinet departments, which means 60 votes in the Senate. POLITICO (a Washington, D.C. political news outlet) surmised that the plan “would pose a heavy political and legislative lift” as previous attempts to eliminate the DOE have failed in Congress. President Obama had his own reorganization plan in 2012 that never went anywhere. Seth Harris, Deputy Secretary of Labor under President Obama, predicted that the merger will not happen.

From a high level, some of the mandates of these two agencies overlap. One pursues education to enter the labor force while the other focuses on the workforce (with some training programs). The proposed merger faces many obstacles before the finer details are even discussed, such as what (and who) gets cut. If nothing else, the announced plan has attracted attention, and it is worth keeping an eye on. Having DOL sections combined and altered with a focus on education (rather than just on enforcement) would certainly be a game changer for many employers.

Yes to Getting Paid for Getting Dressed? Doesn’t Meet the Test, Says 11th CircuitWhen do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation. As we have written about before, the primary legislation dealing with dressing for and driving to and from work is the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996. That act states that an employer is not on the hook to pay its employees for time travelling to and from work (a regular commute) or for activities that are “preliminary to or postliminary to” the “principal activity” of the job. The U.S. Supreme Court established a test that preliminary or postliminary work could only be compensable if it was an “integral and indispensable part of the principal activities.” Easy, right?

The Facts

Mr. Llorca and his cohorts were deputy sheriffs in Collier County, Florida, and were required to show up for work wearing their uniforms and certain protective gear. They were allowed to put on this equipment and clothing at home—and they did that. The deputies also commuted to and from work in marked patrol cars. During that commute, they were required to have their radios on and to respond to any emergencies if they heard them. The county did not pay the deputies for the time spent donning the protective equipment and uniform or for any time just riding to and from work—although they were paid if they had to respond to an emergency. Plaintiffs filed suit under the FLSA for that uncompensated time. The lower court dismissed their case, and they appealed.

Where and How You Get Dressed May Matter

The Eleventh Circuit opinion addressed the donning protective equipment and commuting claims separately. On the dressing claim, the court looked at whether putting on the protective equipment was both integral and indispensable to the deputies’ primary job of law enforcement. The opinion notes that this inquiry is “fact-intensive and not amenable to bright-line rules.” The court found that donning and doffing the uniform and protective equipment was an entirely separate activity from the deputies’ principal law enforcement duties—enforcing traffic laws, responding to emergencies and engaging in crime protection—so not compensable. The court also relied on DOL regulations that held that changing clothes normally is among the preliminary and postliminary activities that are non-compensable.

The court also found it significant that the deputies were allowed to dress at home. The DOL has found that changing clothes at home is not compensable and the court compared the situation to a chemical plant employee who has  to don specific chemical exposure suits while at the plant. That type of changing activity would be considered both integral and indispensable to the job and therefore recoverable. In this case, the Eleventh Circuit denied the wage claim.

Riding to and from Work

With regard to the commuting time claim, the court stated that this type of travel is exactly what the Portal-to-Portal Act attempted to exempt from the wage requirements of the FLSA—even if you are in a company vehicle. The fact that the officers might also have to be responsive to possible emergencies did not trouble the Eleventh Circuit in finding that it was not compensable time. Again, a DOL regulation also provided the court with support by holding that a police officer who is off duty, but has to have the radio on for emergency calls, is not working during the travel time. Other circuits had agreed on this point and the court noted those cases in denying the claim.

Is Dressing and Driving Always Non-Compensable?

As the court explicitly stated, these types of claims are decided on a case-by-case basis and are very fact driven. However, there are some good tips we can take from this case.

  • If an employee is able to dress at home, that is most likely not going to be a compensable activity. However, if there are pre-or post-shift activities that have to occur on site–specific location-based protective equipment, showering due to workplace exposures, etc.–that might be compensable.
  • Just because an employee drives a company vehicle doesn’t make the time compensable. But if you require someone to check the mail on the way into work or deliver a bank deposit on the way home that may turn part of the ride into a compensable event.

Again, the best bet is to have discussions with your employees about their work requirements and set expectations for how you plan to pay them.