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What Not to Wear…The NLRB Episode

By Robert E. Entin

Earlier this month, the National Labor Relations Board (“NLRB” or the “Board”) again answered the question of “what not to wear” in unsurprising but disappointing fashion.  Continuing its crusade against handbook policies, an administrative law judge (“ALJ”) held that Walmart (Case No. 13-CA-114222) violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) by maintaining a dress code which limited employees to wearing “small, non-distracting logos and graphics,” finding that such a provision was “overly broad, not justified by special circumstances, and place[d] unlawful restrictions on associates’ Section 7” rights.  This decision provides yet another reminder of the need to draft dress codes with a careful eye toward the NLRB’s evolving pro-employee interpretations of the Act.

At issue in Walmart was a handbook policy which expressly provided:

Walmart logos of any size are permitted.  Other small, non-distracting logos or graphics on shirts, pants, skirts, hats, jackets or coats also are permitted…

Although Walmart did not establish a “definition for what logos qualify as ‘non-distracting,’” it provided several examples to the ALJ as to what did and did not violate its dress code policy.  Specifically, it allowed employees to wear buttons smaller than the Walmart nametag, including a 1.5 inch diameter button with a bible passage and a 2x2 inch photo of a coworker who died in a car accident.  Violations of the dress code included a 3x5 inch picture of a different employee who died in a car accident and a 3x5 inch piece of paper in which an associate drew a hammer and sickle and wrote “Comrade [name].  How may the Communist Party help you.”  Those items, it argued, were determined to be too large and/or distracting.

Interestingly, Walmart allowed employees to wear a small button bearing the logo of the Organization United for Respect at Walmart, an association (though not a union) dedicated to improving the terms and conditions of employment for Company employees.  It banned a similar button from the same organization, because its 3.5 inch diameter was deemed too large. 

Despite this facially neutral policy, and the allowance of smaller “Union” buttons, the ALJ still held that such a restriction interfered with its employees’ exercise of their rights under the Act. Key to this determination was that Walmart had not demonstrated that there were any special circumstances that justified a departure from the general rule that employees are allowed to wear clothing bearing Union insignias at the workplace.  On the contrary, Walmart’s proffered reasons for the limitations (an interest in ensuring that its associates are easily identified by their nametags and that the noncompliant logos distracted customers from their shopping experience) “fell flat.” 

This ALJ may have decided differently had Walmart only enforced the limitation when associates were on the sales floor and in a position to interact with customers.  The Board has approved an employer’s “special circumstances” argument where it demonstrates that a strict uniform policy is necessary for a public image that the employer has established as part of its business plan.  See, e.g., W San Diego, 348 NLRB 372, 373 (2006).

This decision is another good reminder for employers to review their employee handbooks and eliminate overbroad dress codes that its employees would reasonably construe to interfere with their Section 7 rights.  Uniform policies should be narrowly tailored, such that prohibitions on “what to wear” are limited to public spaces with customer interaction.  Employers are encouraged to be proactive in ensuring compliance with the Board’s recent guidance on handbook policies (see GC 15-04, Report of the General Counsel Concerning Employer Rules).