In Tesla Inc., the National Labor Relations Board (“Board”) recently reversed a 2019 decision in Wal-Mart Stores Inc. that gave employers leeway when adopting neutral non-discriminatory dress codes. Instead, the Board applied the standard in the Supreme Court’s Republic Aviation decision, issued in 1945, and held that any policy that interferes with the right to wear union insignia is presumptively unlawful and an employer must articulate “special circumstances” to justify such restrictions.

Tesla’s Team Wear Policy and Union Campaign

This case arose in the backdrop of a union organizing campaign, when Tesla employees first wore black cotton shirts at work, with the union’s campaign slogan, “Driving a Fair Future at Tesla” on the front and a larger logo with the slogan and “UAW” on the back. Tesla strictly enforced its team wear policy. Employees could also wear plain all black clothing if approved by a supervisor. Although employees were not permitted to wear union shirts under the policy, they were permitted to wear union stickers on their clothing. The Union claimed that the team wear policy violated the National Labor Relations Act (“NLRA”) because it restricted the right to wear union insignia on shirts while at work.

The Board Applies the “Special Circumstances Test” and Finds Tesla’s Policy Unlawful   

Following Republic Aviation, the Board applied a “special circumstances test” that prohibited employers from placing restrictions on employees’ ability to wear union insignia absent special circumstances. In the 2019 Wal-Mart Stores, Inc., decision, the Board held that facially neutral uniform policies were not presumptively unlawful and should be analyzed according to the Board’s less restrictive balancing test for workplace rules. In Telsa, the Board overturned Wal-Mart Stores, Inc., and held that all restrictions on union insignia are presumptively unlawful absent special circumstances. In finding the policy unlawful, the Board rejected Tesla’s special circumstances arguments, including Tesla’s position that the policy aided in the visual management of employees, and lowered the risk of employee clothing causing mutilations to the vehicles. Practically, this decision makes clear that even facially neutral non-discriminatory dress codes are presumed unlawful.     

This decision likely raises more questions than answers for employers whose uniform policies have not been challenged. The following are key points to consider in the wake of the Board’s decision:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek P.C. | Attorney Advertising

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.

Copyright © JD Supra, LLC