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Paul Zimmerman
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In-N-Out of the Fifth Circuit: Ban on “Fight for $15” Buttons Struck Down

In-N-Out recently got served by the Fifth Circuit Court of Appeals – “animal style.” In early July, the Court struck down a ban instituted by the California-based restaurant chain prohibiting employees at one of its locations in Austin, Texas from wearing “Fight for 15” buttons. The employees in question wore them in solidarity with other fast food workers as a collective nod to an increase in the minimum wage – a move that In-N-Out’s management found as tasteless as unsalted fries. For its part, In-N-Out had in place a uniform policy forbidding “pins or stickers.” Apparently these adornments were deemed to be inconsistent with the “no frills,” clean, white and red uniforms worn by its employee. The National Labor Relations Board and the Fifth Circuit thought otherwise.

Section 7 of the National Labor Relations Act protects the rights of employees to wear certain items – like the “Fight for 15” buttons – that relate to the terms and conditions of employment and unionization, among other things. There is, however, an exception to this rule: where an employer can demonstrate “special circumstances” that outweigh its employees’ Section 7 rights, that employer will be permitted to enforce a uniform restriction. Nevertheless, these “special circumstances” are limited to cases where enforcement of Section 7 would jeopardize safety, damage products or disturb a public image established by the employer.

In-N-Out argued in court that its uniform policy requiring “clean white uniforms” advanced its public image. Likewise, the restaurant contended that the buttons were a safety concern because they could fall into a customer’s food (talk about a memorable Double Double!). But the Fifth Circuit found the latter contention to be rather contradictory, as In-N-Out requires employees to wear “Merry Christmas” pins during the holiday season and pins soliciting donations for its charitable foundation during the month of April. Consequently, the Court ruled against In-N-Out and in favor of the NLRB, finding that the “special circumstances” necessary to overcome the mandates of Section 7 were not demonstrated (it was also noted that the restaurant never characterized the holiday and charity pins as a safety hazard).

While In-N-Out plans on petitioning the Supreme Court of the United States for review of the Fifth Circuit’s ruling, the outcome of this case should send a loud and clear message to employers – especially as the national movement toward an increased minimum wage continues to gain momentum: if you’re going to limit the ability of employees to display union-related paraphernalia on their uniforms, make sure your rules fit squarely within the NLRA’s narrow exception for “special circumstances.”

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.