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Court rules against In-N-Out’s political pin ban #flair

(BUSINESS) Can a company forbid employees from wearing a political button or “flair”? One court calls this into question.

button flair pins

While consistency, to paraphrase Oscar Wilde, may be the last resort for those lacking in imagination, being consistent in the little things as a business owner, such as the enforcement of employee dress codes, can keep you out of court.

That’s the message that was delivered to In-N-Out Burger earlier this summer, when the federal 5th Circuit Court of Appeals found that while In-N-Out Burger had a well-defined employee dress code, they lacked consistency in enforcement. Operating more than 300 locations throughout the United States, In-N-Out Burger’s dress code specifically states that “[w]earing any type of pin or stickers is not permitted.”

While the prohibition against wearing pins or buttons at any time of the year seems clearly stated, In-N-Out management intentionally contravened their rule by requiring their employees to wear pins during the holiday season to wish customers Merry Christmas, and do so again in April, in order to advertise and solicit donations for the In-N-Out Foundation, a corporately related nonprofit organization that combats child neglect and abuse.

In April 2015, employees of an In-N-Out location based in Austin, Texas attempted to wear buttons that advertised their solidarity with the “Fight for $15” campaign, advocating for a higher minimum wage for those in the food service industry. As the Society of Human Resources Managers (SHRM) noted, the buttons themselves were unobtrusive, approximately a quarter in size, with an image of a raised fist, with a “$15” over the fist.

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Once managers on-site saw the buttons, they instructed their employees to remove them, citing the company rule that forbade them. The employees did so, but soon thereafter filed a charge with the National Labor Relations Board (NRLB), alleging that the company’s position prevented the employees from advocating for their conditions of employment. The NRLB investigated, and soon thereafter issued a complaint against In-N-Out, stating that the company’s total prohibition and enforcement were violations of the National Labor Relations Act.

In order to address these areas, In-N-Out was ordered by the NLRB to cease enforcement of a total prohibition against outside buttons that had no exceptions for those which pertained to conditions of work, including such protected activities as discussions of such terms or conditions of employment to include salary or hours, as well as any union or protected activities, by removing it from the employee handbook. Additionally, they were required to ensure that employees were notified by the change in the rule by posting notices at all locations about their rights.

In-N-Out appealed the action to the 5th Circuit Court of Appeals, and maintained the position that they were simply preventing employees from wearing buttons because they wanted to maintain a consistent public image and to ensure employee and customer safety.

These arguments, however, were not compelling for the justices. The 5th Circuit found that by having their employees wear buttons of the company’s messaging, that employees of In-N-Out were not required to be free from pins or buttons or the messaging that they may have. The claim of safety presented by In-N-Out failed when it was revealed that no one from the company had ever examined the pins to see if there was a safety risk from them to the employees or customers alike.

So what’s to be done if you want to maintain a consistent employee image safe from rogue pieces of flair? First and foremost, understand that any prohibition should apply to all employees, cover all messages, and be enforced equally at all times. Because In-N-Out demanded that their employees wear buttons with corporate-approved messaging at designated points throughout the year, they failed to meet this threshold.

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By having any exceptions at all, even well-meaning and universal ones, they opened the door to allowances for other messages to be worn.

The NLRB provides employees a generous swath to discuss their conditions of employment or other protected union activity in the workplace through the National Relations Labor Act, and relevant provisions should be reviewed and referenced in advance when creating and enforcing company policy to be referenced in employee handbooks or dress codes.

Written By

Roger is a Staff Writer at The American Genius and holds two Master's degrees, one in Education Leadership and another in Leadership Studies. In his spare time away from researching leadership retention and communication styles, he loves to watch baseball, especially the Red Sox!

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