Can employers control what workers wear on the job?
Sometimes workers don’t have a choice in what they wear at work. Police officers wear uniforms. Construction workers put on safety gear. Medical professionals wear scrubs.
There is often some wiggle room in a workplace dress code, however. When that wiggle turns into a message about employee views on working conditions, employers should take employee rights into consideration before taking action.
Employee rights
Employees have the right to join together to improve working conditions and engage in concerted activities for mutual aid or protection. This right is protected by the National Labor Relations Act (NLRA) and applies to both union and non-union employees.
The National Labor Relations Board (NLRB) has ruled that this can include:
- Union logos, buttons, and decals, and
- Pins supporting a higher minimum wage.
In a recent case, the NLRB ruled this can also include an insignia relating to a movement highlighting racial discrimination.
BLM insignia on a worker’s uniform
In February 2023, the NLRB heard a case involving workers who wrote BLM (Black Lives Matter) on their workplace aprons. One employee was fired for refusing to remove the letters.
The employer argued that the initials violated the company’s dress code that banned political messages unrelated to workplace matters from appearing on employee uniforms.
Employees argued that the initials were appropriate because they were a protest of racial discrimination in the workplace. They had complained to management about a coworker’s discriminatory behavior, and a Black History Month display had been vandalized in the break room. Employees did not think management responded appropriately to their complaints.
Board rules in favor of employees
The NLRB determined that the company had violated employee rights, noting that:
- Several employees displayed the markings on their aprons;
- The markings were an outgrowth of employee protests about racial discrimination in the workplace;
- The markings were an attempt to bring the group’s complaints to the attention of managers; and
- The issue of racial discrimination involved employees’ working conditions.
An employer can prohibit employees from wearing uniform markings like the ones worn by the employees if the rule is necessary to avoid production interruptions or maintain discipline.
The NLRB ruled that those special circumstances did not exist in this situation.
Dress code requirements
Every workplace is different, and circumstances dictate how much control an employer has over what workers wear. An employer can apply restrictions that are relevant to the job, including:
- A requirement to wear safety gear that protects employees from injury;
- Prohibiting employees from wearing clothing that could hamper workplace safety; and
- Requiring employees to wear a safety-related insignia identifying their qualifications to help in an emergency.
Even when safety and public health are not an issue, employers can have dress codes that require employees to wear apparel that is appropriate for the workplace. However, they should be ready to consider exceptions for religious reasons or as an accommodation under the Americans with Disabilities Act .
Employers should also consider whether wearing a certain piece of clothing is an action protected by the NLRA. An employee’s right to engage in protected activities can include protesting discrimination in the workplace, and when workers join together to make a point about working conditions employers should proceed cautiously.
Key to remember: Under the NLRA, all employees have the right to engage in concerted activities for the purpose of mutual aid or protection. This can include placing insignias or markings on their apparel.
