“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.