The U.S. National Labor Relations Board (NLRB) recently confirmed that employers cannot stop employees from displaying union insignia or wearing union apparel, unless they can prove a valid reason for the restriction.
Overruling a 2019 decision, the board found it was unlawful for the carmaker Tesla to require employees to wear a black T-shirt with the employer's logo or a plain black T-shirt, which meant they couldn't wear a shirt with a union logo.
"Employers may now only restrict employees from wearing union apparel or insignias if they have a special circumstance for doing so," explained David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "These [circumstances] include employee safety, quality control, public image or workplace decorum. Employers must be careful. Any adopted restrictions should be narrow and well-grounded in one of these categories."
The burden is on the employer to show the restriction results from special circumstances.
The board's 3-2 decision on Aug. 29 was split along partisan lines. Tesla can appeal the decision to a federal appeals court, if it wants to.
The Tesla ruling "likely signals the beginning of a major sea change at the NLRB," Pryzbylski said. "Employers should expect more decisions that will limit their ability to do certain things in the workplace. More decisions limiting flexibility are expected—and soon."
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