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“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.

Happy Thanksgiving and the Many Things for Which We Are ThankfulBefore everyone gets out of the office to their various homes and families to celebrate the holiday, we wanted to review the year and count our blessings. Not only are we thankful that our families and colleagues in our Houston and Tampa offices weathered the storms safely, we are also thankful for the following legal stuff:

1. The DOL is not about to change the wage and hour laws.

Does anyone else remember the panicked calls last Thanksgiving week when the Texas judge put the brakes on a regulation that was going to increase the salary basis test? We are all thankful that will not happen this year. Although we still don’t know what, if anything, will happen on that front we will keep you posted.

2. Finally a court has said the ADA is not about leave.

Despite the EEOC’s insistence otherwise, the Seventh Circuit stepped up to the plate and said extended leave is not a reasonable accommodation under the ADA. As we all know, you still need to consider if a limited amount of leave will get the employee back to work but we are thankful that we have some new case law on this front.

3. Harvey Weinstein doesn’t work for us.

This story has horrified many but given all employers a wake-up call. We are grateful for the opportunity to train more people and try to make America a better place to work.

4. The NLRB has a new direction.

Maybe the new Board won’t tell employees that it is okay to swear at your boss on Facebook or nitpick employer policies quite so much.

5. You’re not going to be the employer of someone else’s employees.

DOL has withdrawn its prior guidance on independent contractor and joint employer liability, and Alabama’s Rep. Byrne has introduced a bill to “Save Our Small Businesses.”

6. Legalized marijuana has made questions about drug policies so much more interesting.

Even though it isn’t legal in many states, the fact that employees can legally ingest marijuana many places (including Florida) and take their chances on the looming random drug screen has spiced up our lives. While the law will continue to develop in this area, we are grateful for the very interesting questions we have received.

7. People other than our mothers read this blog.

(Okay, some of our moms are reading and might boost the numbers a little bit.) Since 2016, we have published more than 130 articles and had more than 230,000 reads, according to aggregate reports from Lexology and JD Supra. We have received recognition in The Expert Institute’s Best Legal Blog 2017 competition, the ABA Journal’s Web 100 Ranking, and numerous quotations in other publications. We enjoy bringing you this information and love it when you tell us it is helpful or tweet it to someone else.

Happy Thanksgiving from the Labor & Employment Insights blog team!

Around the end of October, a photo of a government contractor employee flipping the bird to President Trump’s motorcade went viral after the woman made it her profile picture on Facebook. She was subsequently fired for a violation of her company’s social media policy. The company said that the image was “lewd” and “obscene.” The woman argued that she was not at work when the photo was taken and did not mention her employer in the post. No litigation or charges have been filed yet, but would they be successful?

Can an Employer Regulate Political Social Media Speech?

Flipping Out Over Flipping Off: What Are the Limits on Regulating Employee Political Speech?

What comes to most people’s mind when reading this type of scenario is the First Amendment guarantee of free speech. However, the First Amendment protects against governmental censorship of speech. With some restrictions, a private employer can restrict speech in the workplace. This right to restrict also may be extended to social media speech, especially when the employer has a written social media policy and if the employee is using employer-provided equipment (cell phone or computer) to engage in the speech. Coupled with the fact that many states are “at-will” employment states, it may be perfectly acceptable for an employer to terminate an employee who engages in speech that the employer finds offensive or non-productive.

One complication outside of the First Amendment is the National Labor Relations Board’s recent decisions that employees cannot be restricted from commenting on social media about their conditions of employment. The NLRB considers such comments to be “concerted protected activity” for which an employer may not retaliate. However, as seen here, there may be social media posts that have nothing to do with the conditions of the workplace, but that the employer doesn’t like. For those posts, discipline or termination may be an option.

This story is a good prompt for employers to review their social media policies and to talk about them with their employees. Remind employees that, although they may not expressly identify each post with the place they work, they still may be considered the face of the organization. Political discussions are not per se taboo—but the tone and language used may sometimes stray into offensive territory. As always, an open dialogue about employment policies usually results in happier employees and less difficult situations.