Why it matters

In-N-Out Burger, Inc. cannot prohibit employees from wearing buttons advocating for an increase in minimum wage payments, the National Labor Relations Board (NLRB) recently ruled. A manager at a Texas location of the fast food chain told a worker that the company’s dress code required him to remove a “Fight for $15” button while on the clock. Considering the employee’s charge that the application of the dress code violated the National Labor Relations Act (NLRA), an administrative law judge found no merit to the employer’s contention that its business plan necessitated all employees to dress alike. The Board affirmed that the company violated the NLRA when it enforced the ban and informed the worker to remove his pin. The Board also amended the remedy to nationalize it, requiring In-N-Out Burger to rescind any part of its dress code that prohibited workers from wearing unapproved buttons or insignia unless the rules make exceptions for buttons or insignia that pertain to wages, terms and conditions of employment, union support, and other protected activities.

Detailed discussion

In-N-Out Burger requires employees to adhere to a dress code that included a prohibition on wearing “any type of pin or stickers.” In April 2015, an employee at a Texas location wore a “Fight for $15” pin and was instructed to remove it. The worker filed a charge with the National Labor Relations Board (NLRB), arguing that the application of the dress code violated his rights under Section 8(a)(1) of the National Labor Relations Act by infringing on his exercise of Section 7 rights.

The employer admitted to requesting that the pin be removed, but argued that allowing employees to wear pins or insignias in violation of its dress code would detract from its image. The company’s brand identity hasn’t changed in decades, In-N-Out Burger said, including a plain uniform with “a limited number of specific identified elements” with employees directed they could not add or take away from the uniform. Permitting employees to wear an individualized pin would have a negative impact and prevent the company from furthering its business plan, the employer argued.

An administrative law judge (ALJ) disagreed. The employer had not established any special circumstance that would justify an exception to the rule that employees generally have a Section 7 right to wear buttons with messages related to a union or to terms and conditions of employment, the ALJ wrote.

In-N-Out Burger violated Section 8(a)(1) not only by maintaining the dress code policy prohibiting the wearing of all buttons and insignia except for those it approved or required, but also by requiring the removal of the “Fight for $15” button, the message of which related to a term or condition of employment, the ALJ found, limiting the scope of the remedies ordered to the Texas location.

The employer appealed to the National Labor Relations Board (NLRB) and the three-member panel unanimously affirmed. In-N-Out Burger presented insufficient “public image” evidence to render lawful its position that workers could not wear a “Fight for $15” button on their uniforms, the NLRB said.

Acting Chair Philip Miscimarra disagreed with the ALJ on several points, however. For example, the ALJ noted that In-N-Out Burger permitted the wearing of pins in certain circumstances, with “Merry Christmas” pins added to the uniform during the holidays as well as a button seeking donations to the In-N-Out Foundation each April. The ALJ found that by permitting the wearing of some pins, the employer “casts some doubt on any claim that special circumstances require the employee’s clothing to be button free.”

Not so, the Acting Chair wrote. “[W]hen the Board evaluates the legality of a restriction on buttons and pins, an employer’s ‘public image’ can legitimately recognize certain holidays or charities without diminishing the importance of the public image to the employer’s business.”

The entire panel also tweaked the ALJ’s order, finding he erred by declining to give it nationwide application. The parties stipulated that the employer’s dress code policy applied to employees at all of In-N-Out’s more than 300 restaurants and the employer repeatedly emphasized the importance of consistency from store to store. Accordingly, the NLRB modified the order to apply nationwide.

In-N-Out must cease and desist from “maintaining and enforcing a rule that prohibits employees from wearing, while on duty, any button or insignia apart from those it has approved, and that makes no exception for buttons or insignia pertaining to wages, hours, terms and conditions of employment or union or other protected activities,” the Board directed. Employees nationwide must be notified and provided with inserts for the current employee handbook reflecting the policy rescission.

To read the decision and order in In-N-Out Burger, Inc., click here.