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Can You Ban Workers From Wearing Political Messages at Work?

By Christopher Coble, Esq. | Last updated on

You want to foster an environment at your small business where all of your employees and customers feel comfortable. But political conversations, especially in the current climate, have the potential to cause some civil unrest in the office. And when those conversations center around the minimum wage and the right to unionize, they can get especially uncomfortable for workers and management.

In-N-Out thought it had the right idea when it invoked a blanket ban on "any type of pin or stickers" to prohibit employees at an Austin location from wearing "Fight for $15" buttons in solidarity with a nationwide campaign for a $15 per hour minimum wage, the right to form a union without intimidation, and other improvements for low-wage workers. But the company went too far, according to the Fifth Circuit Court of Appeals. So, what does that mean for you and your small business?

Put a Pin in It

The National Labor Relations Board protects certain speech at work, especially in relation to labor conditions and unionization. The Board found In-N-Out violated employees' free speech rights by asking employees to remove their "Fight for $15" buttons, and ordered the company to 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
  • "Directing employees to remove from their clothing any button or insignia pertaining to wages, hours, terms and conditions of employment or union or other protected activities"; and
  • "Directing employees that they may not wear any [such] button[s] or insignia."

In-N-Out appealed the ruling to the Fifth Circuit, but that court agreed with the NLRB, finding Section 7 of the National Labor Relations Act "protects the right of employees to wear items -- such as buttons, pins, and stickers -- relating to terms and conditions of employment (including wages and hours), unionization, and other protected matters."

Pinned Down?

To be clear, the National Labor Relations Act doesn't apply to all employers and employees, and the Fifth Circuit's ruling doesn't apply to all political speech. Visual complaints about the president, for example, may not be protected speech, and you may be able to fire employees for being Neo-Nazis or white supremacists, or for bigoted speech.

But when employees are discussing salary? That may be protected, either under the NLRA or state labor laws. If you're trying to balance political speech at work with public perception and productivity, an experienced employment law attorney can help.

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