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CANCER AWARENESS PIN VICTIM OF OVERLY BROAD DRESS CODE

QUESTION: The company I work has a dress code that prohibits wearing any kind of “message” clothing when dealing with the public. I wore a little pin on my lapel for Cancer Awareness, and my boss told me to take it off or go home. Isn’t that kind of drastic?

ANSWER: It is kind of drastic. It’s also illegal, but not because it prevents you from showing your support for cancer victims. An employer has every right to ban “message” clothing at work, but only if the ban doesn’t affect employees’ right to organize. What does a clothing ban have to do with collective action? Well, a blanket anti-pin rule includes even union insignia and messages, and therefore violates the National Labor Relations Act (NLRA).

Under Section 7 of the NLRA it is an “unfair labor practice” to “interfere with, restrain, or coerce employees” who are exercising their “right to self-organization … and to engage in other concerted activities for the purpose of … mutual aid or protection.” The National Labor Relations Board, which enforces the Act, has said a rule that prohibits wearing union insignia interferes with employees’ rights, unless there are “special circumstances” to justify the ban. For example, it is OK to ban union insignia if there’s a chance it “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established as part of its business plan through appearance rules for its employees.” Bell-Atlantic-Pennsylvania, 339 NLRB1084, 1086 (2003). The burden is on the employer to prove that one of these special circumstances exists.

In a 2015 case, the NLRB found no merit to a claim by a car dealership that an employee handbook provision barring “pins, insignia, or other message clothing” was justified in order to prevent damage to vehicles. Since there was no evidence any vehicle had ever been damaged by a pin-wearing worker, the NRLB held the overbroad provision was illegal ordered the employer to revise its manual. Boch Honda, 362 NLRB No.83 (2015)

Bottom line: Your employer’s rule is overbroad and illegal and should be revised. Unfortunately, a revised rule that does not implicate collective rights could still make pins such as yours prohibited. You might want to play it safe and wait until after work to wear your pin.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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