What could possibly be wrong with dress codes and casual Fridays?

Several Iowa employers maintain dress codes to ensure that employees dress in a manner that is professional, clean and appropriate for the employers’ customer base. But what is wrong with an employer’s dress code that requires employees to wear clothing that displays the Company logo and prohibits clothing that displays other types of logos and graphics? According to a recent decision by an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (“NLRB”), it is overly broad and interferes with employees’ Section 7 rights under the National Labor Relations Act (“NLRA” or “Act”). In Wal-Mart Stores, Inc., Case No. 32-CA-09-116, http://www.nlrb.gov/cases-decisions/administrative-law-judge-decisions, an NLRB ALJ ruled that Wal-Mart’s dress code for its California workers was overbroad because it “unduly restricted associates’ right to wear union insignia.” The ALJ’s decision in Wal-Mart Stores, Inc., is an important reminder to Iowa employers that their dress codes, including dress codes for casual Fridays, may be unlawful under the NLRA.

Under the NLRA, all private-sector employees, unionized or not, have a statutorily protected right to wear union insignia on their employer’s premises, including buttons, t-shirts and other articles of clothing. However, an employer may lawfully restrict employees from wearing union insignia if “special circumstances” justify the restriction.” Special circumstances justify restrictions on union insignia or apparel when their display may: (1) jeopardize employee safety; (2) damage machinery or products; (3) exacerbate employee dissension; (4) unreasonably interfere with a public image that the employer has established; or (5) unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees.

Recently, the NLRB and NLRB ALJ’s have applied these principles to strike down longstanding and sensible dress codes. For instance, in Alma Products Co., Case No. 07-CA-89537, an NLRB ALJ struck down the employer’s dress code that prohibited “clothing that displayed vulgar or obscene phrases, remarks or images which may be racially, sexually, or otherwise offensive and clothing displaying words or images derogatory to the Company.” The case arose after an employee was disciplined for wearing a “slave shirt” to work. Despite the employer’s concerns about racial discrimination, the ALJ found that the dress code was unlawfully overbroad because it prohibited all derogatory communications regardless of whether the words were racially or sexually discriminatory.

The Wal-Mart case arose after an overnight maintenance employee was told to change out of his shirt that had a Mexican flag and the words “UFCW, Un Voice, Un Vision, Un Union” written on the back, and that had an emblem on the left hand side of the front of the shirt. The employee was asked to change his shirt because it violated Wal-Mart’s dress code, which provided, in relevant part:

Logos or graphics on shirts/blouses, pants, skirts, hats, jackets or coats are not permitted, except the following, so long as the logo or graphic is not offensive or distracting:

1. A Wal-Mart logo of any size;

2. A clothing manufacturer’s company emblem no larger than the size of the associate’s name badge; or

3. Logos allowed under federal or state law.

The NLRB ALJ found that this dress code policy was unlawfully overbroad. To reach this conclusion, the ALJ rejected Wal-Mart’s argument that “special circumstances” existed to justify the dress code policy. Specifically, Wal-Mart argued that the dress code was justified to support Wal-Mart’s “public image.” According to Wal-Mart, the logo restrictions in its dress code were justified because the dress code, together with Wal-Mart’s workplace standards policy, ensured that employees are profession, neat and clean in their appearance, and dress in a manner that supports Wal-Mart’s public image of providing excellent customer service. The ALJ rejected this argument in its entirety. In doing so, the ALJ relied on three critical facts: (1) Wal-Mart loosely enforced its dress code; (2) the dress code was not part of a “comprehensive public image business plan;” and (3) the dress code prohibited union insignia for employees who worked in public areas of the store as well as union insignia for employees who did not work in public areas of the store.

Take Aways: Employers can learn a number of important lessons from this case. First and foremost, employers must enforce their dress code policies in a uniform and consistent manner. Second, if your workplace warrants different dress standards for different types of employees (e.g., overnight maintenance workers v. daytime cashiers or bank tellers v. maintenance workers), those standards should be made clear and should be supported by a legitimate business reason. Third, employers should use specific examples of acceptable versus unacceptable attire. Lastly, the dress code should include a statement that communications protected by Section 7 of the NLRA are permissible.

If you have any questions regarding how this case may impact your dress code policy, please contact a member of Dickinson’s employment law group.