Update: Feb. 25, 2019: The U.S. Supreme Court has declined to review In-N-Out Burger, Inc. v. National Labor Relations Board, No. 17-60241 (5th Cir., July 6, 2018).

Dive Brief:

• Employees at western-based In-N-Out Burger had a right to wear buttons at work advocating for higher wages, the 5th U.S. Circuit Court of Appeals has ruled, upholding a National Labor Relations Board (NLRB) ruling (In-N-Out Burger, Inc. v. National Labor Relations Board, No. 17-60241 (5th Cir., July 6, 2018)).
• When employees at an Austin, Texas, In-N-Out Burger started wearing “Fight for $15” buttons, supporting a nationwide minimum wage campaign, they were asked to remove the buttons because they violated the fast food chain’s uniform policy. One of the employees filed an unfair labor practice charge with NLRB, claiming that the ban violated the National Labor Relations Act. Section 7 of the NLRA grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. NLRB rejected the eatery’s argument that maintaining a unique public image and its concern with food safety constituted “special circumstances” that justified its policy on buttons, and In-N-Out took the case to the 5th Circuit.
• The 5th Circuit also rejected In-N-Out’s arguments, pointing out that Section 7 has long been recognized as granting employees the right to wear items such as buttons, pins and stickers relating to the terms and conditions of employment, unionization and other protected matters. Policies prohibiting such items must conform to a narrow exception to the rule — special circumstances — that balances employees’ Section 7 rights and employers’ conflicting managerial interests. The appeals court agreed with NLRB that In-N-Out failed to establish a special circumstances defense based on public image because employees are required to wear even larger company-issued buttons twice a year. Its food safety argument also failed because its no-button rule was broad — not "narrowly tailored” to that concern. In-N-Out told multiple outlets that it plans to ask the U.S. Supreme Court to take up the case.

Dive Insight:

While the NLRB may be shifting to the right, making moves that could especially benefit employers in the fast-food industry, employees still have a right to concerted activity. "As this decision indicates, there is a long history of protecting a worker’s right to wear a union pin or a button protesting a certain work practice," wrote J. William Manuel, a partner at Bradley Arant Boult Cummings LLP, in a post for the firm.

Employers who choose to ban their workers from wearing buttons should be sure that they have significant evidence to back up their argument of special circumstances, Manuel said.

The In-N-Out court noted that previously, acceptable "special circumstances" included showing how the protected items would: (1) jeopardize employee safety; (2) damage machinery or products; (3) exacerbate employee dissension; or (4) unreasonably interfere with a public image that the employer has established.

In 2017, the 8th Circuit upheld the firing of six workers by a Jimmy John's franchisee, finding that, in trying to protest the company's lack of paid sick leave, the workers' posters criticizing the safety of the company's product was too disparaging to merit NLRA protection. The employees distributed posters warning customers that they were “about to take the sandwich test" — and find out whether a healthy or a sick employee had prepared their meal. The court said the posters were misleading, disparaging and likely to have a devastating effect on the business.