Law stated as of 17 Nov 2023 • USA (National/Federal)
In Wal-Mart Stores, Inc., the National Labor Relations Board (NLRB) found that content-neutral dress code policies maintained by Wal-Mart limiting the wearing of union insignia of specified sizes or appearances, were lawful insofar as they apply to areas where employees encounter customers, but violate Section 8(a)(1) of the National Labor Relations Act (NLRA) insofar as they apply to areas other than the selling floor.
On December 16, 2019, in Wal-Mart Stores, Inc., the majority of the panel (Board) heading the NLRB's judicial functions found that content-neutral dress code policies maintained by Wal-Mart limiting the wearing of union insignia of specified sizes or appearances:
Were lawful insofar as they apply to areas of stores where employees encounter customers in the course of performing their jobs.
Violated Section 8(a)(1) of the NLRA insofar as they apply to areas other than the selling floor.
The Board found that the appropriate framework to determine the lawfulness of Wal-Mart's dress code policies is the Board's test for facially neutral employer policies in Boeing Co. (365 N.L.R.B. No. 154 (2017)). The Board declined to apply the Republic Aviation Section 7 rights-legitimate business interests balancing test and special circumstances exception because the employer's rule did not wholly prohibit union buttons and insignia (Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03 (1945)).
The practical implications of this case are that the Board will not demand that employers demonstrate special circumstances under Republic Aviation progeny for imposing limitations on the size or appearance of buttons or insignia, including those supporting unions, as recent Boards had before Boeing. This decision also suggests that an employer may categorically prohibit employees from displaying oversized and distracting logos and graphics that cannot be easily affixed or removed in all areas of a store. An employer doing that must be ready to demonstrate legitimate business interests in limiting the size and appearance of buttons and insignia in certain areas, such as ensuring that retail store employees on the selling floor are readily identifiable to customers to enhance the customer shopping experience and protect store merchandise from theft and vandalism.