On August 29, 2022, the National Labor Relations Board (NLRB or Board) overturned prior NLRB precedent and announced a new and highly restrictive standard for employers seeking to establish and enforce workplace uniform policies and dress codes.

A large manufacturer maintained a dress code policy, which mandated that employees wear “assigned team wear” consisting of a black t-shirt bearing the employer’s logo and black pants. In 2017, in connection with a union organizing campaign, some employees began wearing different black t-shirts bearing the logo of a labor union. The employer banned these shirts, citing its dress code policy. It did, however, permit employees to wear union stickers on their assigned team wear. Nonetheless, unfair labor practice charges were filed with the Board alleging that prohibiting the union t-shirts violated the employees’ right under Section 7 of the National Labor Relations Act (Act) to display union insignias on their clothing at work.

In a divided opinion, a three-member majority of the NLRB (Chairman McFerran and Members Prouty and Wilcox) overruled prior Board precedent and held that an employer policy or rule that interferes in any way with employees’ right to display union insignia is presumptively unlawful. To overcome that presumption, the employer must demonstrate “special circumstances” – such as a risk to employee safety or of damage to employer products or equipment, or of unreasonable interference with an established public...

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