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Workplace Dress Codes

NLRB Increases Scrutiny of Workplace Dress Codes

On August 29, 2022, the National Labor Relations Board (NLRB) found that Tesla’s dress code violated the National Labor Relations Act (NLRA). This decision reversed existing precedent, giving employers less leeway in controlling what their employees wear to work. Now, any workplace dress codes that may be read to restrict wearing union insignia or apparel will be presumed to violate federal labor law. Employers must show special circumstances to justify any such policy.

Section 7 Rights

The NLRB’s analysis of workplace dress codes arises under Section 7 of the NLRA. Section 7 grants employees the rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It also protects employees’ right to refrain from such activities.

Section 7 rights include the prerogative to demonstrate support for a labor union, such as by wearing union insignia on buttons or apparel. However, the right is not absolute and has always been subject to various time, place, and manner restrictions. The scope of those restrictions has fluctuated over the years based on varying views of NLRB members.

Tesla’s Policy

Tesla required production associates manufacturing its electric vehicles to wear assigned company uniforms. The company provided each associate with two pairs of black pants, two black short-sleeve shirts, two black long-sleeve shirts, and a black sweater. The shirts and sweaters bear Tesla’s logo. Supervisors and line inspectors wear red and white shirts, respectively, to distinguish them by job function.

Production associates were allowed to substitute other all-black clothing for the company-issued uniform. However, Tesla’s team-wear policy specified that “[a]alternative clothing must be mutilation free, work appropriate and pose no safety risks (no zippers, yoga pants, hoodies with hood up, etc.).”

Wal-Mart Precedent

In a 2019 decision involving Wal-Mart, the NLRB held that a facially neutral employee appearance policy would be deemed lawful. The burden would then fall to the party challenging dress codes to demonstrate how they unduly restrict employees’ rights to show union support.

The Tesla ruling expressly overrules Wal-Mart. Two NLRB Board members who were in the majority in deciding the Wal-Mart case three years ago dissented in Tesla. The Board majority has shifted to 3-2 control by pro-labor members.

New Standard for Workplace Dress Codes

Under Tesla, the NLRB will find any limitation on employee dress and appearance policies that might limit the display of union insignia to violate the NLRA, unless the employer demonstrates sufficient justification for its policy. Thus, the decision flips the presumption.

There are various situations where the NLRB has permitted limited restrictions on what employees wear. For example, employers may impose restrictions when the display of union insignia “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, [] unreasonably interfere with a public image the employer has established, or when necessary to maintain decorum and discipline among employees.” But when an employer seeks to uphold their workplace dress code based on any of these rationales, the NLRB will “engage[] in a rigorous, fact-specific inquiry to determine whether the employer actually established the presence of special circumstances in the context of its workplace.”

Employers Beware

Under the new Tesla standard, employers are at risk of having any workplace dress code struck as unlawful. The dissenters hypothesize many scenarios where requiring employees to dress relatively uniformly would not survive the NLRB’s scrutiny. At best, employers would need to rely on exceptions that may or may not be deemed to apply to their situation. Moreover, the NLRB applied its changed standard retroactively to Tesla, demonstrating that any company is at risk of being faulted for relying on an existing exception that the current NLRB majority disagrees with.

In the bigger picture, employers should realize this is just the first significant reversal of NLRB policy by the newly pro-labor Board majority. It is prudent to expect similar rulings beyond the issue of what employees can wear to work. The Wal-Mart ruling followed a 2017 standard for reviewing workplace policies established in a case involving Boeing. The NLRB will likely further erode Boeing‘s relative protection of employers’ rights to control what happens in their workplaces.

 

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Religious Attire

New York Extends Worker Protections for Religious Attire

On August 9, 2019, Governor Cuomo approved a change to the New York State Human Rights Law enhancing worker religious discrimination protections. The law will now specifically address applicant and employee accommodations based on religious attire and facial hair.  The amendment will take effect on October 8, 2019.

Religious Attire Protections

The amendment expands or at least clarifies the existing protections from religious discrimination under New York law.

The law already prohibits employers from requiring an applicant or employee to “violate or forego a sincerely held practice of his or her religion.” Before, this specifically included “the observance of any particular day or days or any portion thereof as a sabbath or other holy day.” Now the law adds a specific reference to “the wearing of any attire, clothing, or facial hair in accordance with the requirements of [the person’s] religion.”

“Undue Hardship” Exception

Employers will not always have to allow employees to wear religious attire or facial hair in every situation. There is an exception if, after engaging in a bona fide effort, the employer can “demonstrate that it is unable to reasonably accommodate the employee’s or prospective employees sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Employers Must “Reasonably Accommodate” Religious Beliefs

New York State and federal law both require employers to make a reasonable religious accommodation for an employee’s sincerely held religious beliefs, unless doing so creates an “undue hardship” on the employer. Protected religious beliefs may include those of a traditional, organized religion. But also include beliefs not part of a formal religion or sect, even if practiced by relatively few people.

Employers should consider various factors in assessing whether a religious accommodation request imposes an undue burden or hardship. Here are some factors highlighted by the New York Attorney General:

  • the type of workplace;
  • the nature of the duties required for the position;
  • any cost associated with the implementation of the request relative to the size and budget of the employer;
  • the effect that the religious accommodation may have on the business;
  • any collective bargaining rights or seniority rights that may exist;
  • the number of individuals that may require the accommodation;
  • any impact on workplace safety and productivity;
  • whether the requested accommodation would conflict with another law that pertains to the circumstances; and
  • whether any alternative accommodations would also meet the needs of the religious needs of the applicant or employee.

It is often difficult for an employer to truly understand what religious beliefs would be considered “protected” under state and federal law and therefore must be accommodated. If you have an applicant or an employee that has requested a reasonable accommodation based on a protected religious belief, it is strongly recommended that you seek guidance from an employment attorney before making a decision that could potentially subject the company to liability.

Review and Prepare

New York employers should review existing dress code and grooming policies in light of the revised law. You should ensure that all personnel responsible for receiving and responding to applicant and employee accommodation requests in New York familiarize themselves with the new religious attire provision. They must also understand their obligations regarding religious accommodation requests generally.

 

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