November 18 Tip of the Week
“Dress Codes Revisited”
A recent 8th Circuit Court of Appeals decision involving Home Depot and a restriction on an employee’s right to include personal messages of support for various social issues is an excellent reminder to employers of the importance of reviewing their workplace policies.
In that case, an employee wrote “Black Lives Matter” on their orange apron after coworkers raised concerns about racial issues at the store. The company told the employee that they needed to remove that statement from their apron and the employee refused. When telling the employee to remove the reference to Black Lives Matter from their apron, Home Depot referenced its dress code policy, which prohibited political or social messages unrelated to work. The employee, after refusing the company’s directive, resigned from their position and filed an unfair labor practice charge with the National Labor Relations Board. The Board sided with the employee and ruled that the company violated the law because the employee’s apron display constituted “protected concerted activity.” The 8th Circuit Court of Appeals disagreed and remanded the case back to the NLRB for review.
In disagreeing with the Board’s initial determination, the Court held that Home Depot had “special circumstances” justifying the enforcement of its dress code policy and requiring the removal of Black Lives Matter from the employee’s apron. The Court found that the location of the store, which was near the site of the George Floyd protests, was an area of civil unrest and the company could restrict the display of a potentially divisive message to protect employee safety, maintain order, and preserve its public image based on a reasonable belief that the messaging could be disruptive and/or inflammatory.
This case is an important reminder to employers of the need for clear and uniform dress code and uniform policies. While Home Depot’s policies allowed for the display of other uniform messages and activities that promoted racial equality and respect in the workplace, they prohibited this message due to the heightened environment. Applying this decision to all employers, it is important to recognize the limitations on dress code restrictions and to ensure that all types of expression are treated equally. Employers cannot routinely allow some forms of expression and deny others – unless, as established by this decision, there is a legitimate business reason for the distinction. In this case, the special circumstance that allowed the restriction on the display of Black Lives Matter was the civil unrest and that was occurring in reaction to the death of George Floyd.
When drafting dress code policies, it is important for employers to identify reasons why an employee’s right of expression may be curtailed. Appropriate justifications include customer perception, workplace safety, and employee cohesion. When exclusions are made under the policy, employers should document the reasons for the prohibition of certain displays or sentiments, in order to show the special circumstance that exists that permits such distinctions. Employers should also train managers and supervisors in the application of the policy and the difference between personal expression and group action tied to workplace conditions.
This can be a difficult distinction to convey; however, myHRcounsel can assist you drafting and enforcing comprehensive and legally compliant dress code and other workplace policies.