Management Memo

After a flurry of pro-employee National Labor Relations Board (“NLRB”) decisions, the Fifth Circuit gave employers a glimmer of hope, rejecting the Board’s recent rule issued in Tesla, Inc., 371 NLRB No. 131 (2022) that effectively put every employer’s appearance, dress code and uniform policy in jeopardy of violating Board law if it could be read to limit employees’ ability to wear union apparel or insignia in any way unless the employer is able to meet the high burden of demonstrating that “special circumstances” existed to justify the policy.

The Tesla, Inc ...

On August 29, 2022, the National Labor Relations Board (“NLRB” or the “Board”) issued a decision in Tesla, Inc. regarding dress code policies that further the Biden Board’s efforts to remake NLRB policy. This decision has big implications for employers that maintain appearance, dress code, and uniform policies. The Board’s decision now firmly establishes that any employer’s uniform or dress code policy is inherently unlawful if it can be read “in any way” to prohibit employees from wearing union insignia unless an employer can prove that its policy is justified by special circumstances. It is irrelevant whether the employer’s policy has ever been applied to prohibit union t-shirts or the employer actively permits union buttons or other insignia. Further, and critical to a broader understanding of the implications of this decision, it is also irrelevant whether the workplace is unionized or even being actively unionized.