March 26, 2021
The Association argued that employers have fundamental rights to maintain and enforce nondiscriminatory workplace rules and policies in an amicus brief responding to the National Labor Relations Board’s invitation for input on employee uniform policy issues.
The case, Tesla, Inc., involved employees who were substituting union clothing for the employer’s required company uniform. An Administrative Law Judge found that Tesla’s uniform policy was unlawful because it prohibited employees from wearing union t-shirts and other clothing in place of the company-required uniform. This prohibition was based on the company's legitimate concerns that outside clothing could damage the surface of car chassis and make identification of employees on the factory floor difficult. The uniform policy did, however, allow for the wearing of union hats, buttons, pins, and stickers.
The Board invited briefs addressing what its proper approach should be towards nondiscriminatory uniform policies requiring the wearing of company-issued or approved clothing that still allow for the wearing of some union insignia (such as buttons, pins, and stickers) – just not substitutions of union clothing for company wear.
As reported in Bloomberg, the Association noted the many justifications employers have for maintaining workplace rules such as a uniform policy, including safety, maintaining the company’s public image, and preventing damage to machinery or products, among others.
The Association further argued that workplace rules and policies should be evaluated by properly balancing the rights of employers to maintain discipline and production against employees’ rights to self-organization. We argued that the current Board approach to uniform policies places too high a burden on employers to prove that they are lawful.
Outlook: Restrictions on employer workplace rules and policies became highly controversial and burdensome during the Obama administration. The current Board’s Boeing framework for evaluating employer workplace rules, which is fairly deferential, is likely to be replaced once Democrats have a majority on the Board beginning later this year. It is likely that a Democratic-majority Board will apply even stricter scrutiny to employer workplace rules and policies, and employers should evaluate their own policies accordingly.