Employers Facing Heightened Scrutiny for Limiting Union Apparel

The change in the presidential administration is being felt in full force at the National Labor Relations Board (NLRB). Last month, the NLRB issued its first precedent-shifting order during the pro-union Biden administration. Back in 2019, the NLRB ruled that employers could limit pro-union apparel at work without needing to show “special circumstances” existed, so long as there wasn’t an outright ban. A recent NLRB decision reversed this standard, and employers are now required to show that a “special circumstance” exists in order to enforce any of these types of restrictions.

What is a “special circumstance”?

In prior cases, applying the “special circumstances” test, the NLRB has found circumstances where the union insignia would jeopardize employee safety, create employee dissension, unreasonably interfere with the employer’s public image, or damage products or equipment constitute special circumstances. With the precedent revived, there is likely to be ongoing litigation over this standard.

What does this mean for employers?

Employers should be extra careful as this ruling opens the gates for employees to file a charge with the NLRB if they are restricted from wearing any pro-union apparel in the workplace. A facially neutral dress code policy is no longer foolproof, and employers will need to determine whether there is a “special circumstance” that justifies any restriction they place on union apparel.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.