“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.

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.

Court Not So Hostile to Employer in Hostile Work Environment CaseLest you think that no one can win a hostile work environment claim, we have some positive news from the Second Circuit. In Russell v. New York University, et al., the court issued a summary order (which does not have precedential effect but is citable) affirming a summary judgment order in favor of NYU and Robert Squillace, the associate dean for Academic Affairs.

Facts

Dr. Suzan Russell sued two coworkers, Joseph Thometz and Eve Meltzer, for creating a hostile work environment by their alleged treatment of her, including anonymous, inappropriate emails that she believed came from them. She also sued her employer, NYU, and Squillace claiming that they failed to stop this behavior, causing her to suffer discrimination and harassment because of her gender, sexual orientation, religion and age. (She also claimed NYU and Squillace retaliated against her for complaining about it.)

The court’s brief opinion relied on the defendants’ policies and procedures. NYU had a “robust internal complaint system,” which Russell admitted that she had availed herself of numerous times. Instead, Russell claimed that defendants’ efforts to remedy the harassment “fell below an objective standard of reasonableness.”

The court disagreed with Russell, agreeing with the lower court that defendants dealt with each of Russell’s complaints “quickly and in proportion to the level of seriousness of the event.” There was an internal investigation in which NYU checked IP addresses that Russell provided and attempted to engage the Manhattan District Attorney’s Office. The court noted that Russell ultimately told NYU to stop contacting the DA, as that was not their business. The fact that NYU was unable to stop the harassment and did not “warn” the employees that Russell suspected them of being responsible for the harassment was not legally sufficient for her to survive summary judgment.

“An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercised reasonable care in preventing and correcting the harassing conduct.”

The court noted that there “is only so much that NYU—a private university lacking the subpoena power of a government agency—can do to investigate misconduct” and that NYU had no duty to take steps against individuals based “solely on her speculative say-so.”

Takeaways

This order is good news for employers. Even though NYU’s efforts were ultimately not successful—and the harassment continued—it won on summary judgment. The Second Circuit’s order makes clear that an employer’s defense to a hostile work environment claim is not measured by its success. If you have (1) a policy prohibiting harassment, (2) effective complaint procedures, and (3) a thorough investigation, even if you do not stop the harassment, you can win. Your reasonable efforts can be enough.