No – a federal appeals court recently rejected the argument that the National Labor Relations Act (NLRA) protects an employee who wears a shirt that says “inmate” or “prisoner” while working.
In Southern New England Telephone Co. v. NLRB, the court addressed the issue of whether an employer could prohibit employees who entered customers’ homes from wearing union shirts that said “inmate” on the front and “prisoner of AT&T” on the back. Nos. 11-1099, 11-1143 (D.C. Cir. July 10, 2015). The NLRB had previously decided that the employer’s prohibition was a violation of the employees’ rights under Section 7 of the NLRA. In reversing the NLRB’s decision, the court stated that “common sense sometimes matters in resolving legal disputes” and that the employer’s prohibition of the inmate/prisoner shirts “seems reasonable.”
Although the NLRA ordinarily does not permit an employer to prohibit employees from wearing union apparel at work, there is a “special circumstances” exception to that rule. Under the special circumstances exception, a company may “lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.” The employer bears the burden of proving this exception applies based on a reasonable belief that the message may damage customer relations — even in the absence of evidence of actual harm.
When the NLRB first addressed this case, it decided that the special circumstances exception did not apply because the shirts “would not have been reasonably mistaken for prison garb.” The D.C. Circuit Court of Appeals disagreed and held that this was an unreasonable application of the special circumstances exception. Instead, the court recognized that “[n]o company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” The court also emphasized that the employer’s prohibition of the shirts was lawful because it was limited to employees who interact with customers or who work in public.
Takeaway: Although an employer usually cannot prohibit employees from displaying union messages while working, the special circumstances exception allows an employer to do so when there is a reasonable belief that the message may damage customer relations or the company’s public image.