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Fifth Circuit Rules In Favor of In-N-Out Employees in Minimum Wage Button Dispute

On July 6, 2018, the Fifth Circuit Court of Appeal agreed with a National Labor Relations Board ("NLRB") finding that In-N-Out Burger Inc. ("In-N-Out" or the "Company") cannot prohibit employees from pinning "Fight for $15" buttons to their uniforms.

The NLRB found In-N-Out was wrong in demanding that employees in an Austin, Texas, branch remove pins relating to a 2015 movement to increase the minimum wage. In its decision, the Board cited Section 7 of the National Labor Relations Act ("NLRA"), which permits employees to wear items concerning the conditions and terms of their employment, which the Fifth Circuit found could be enforced.

The Austin In-N-Out employees began wearing the "Fight for $15" buttons in April 2015. One employee was denied permission to wear the button upon asking, and another was told his button violated uniform policy. A third employee confronted her manager, asserting the restaurant could not force her to remove the button.

A worker subsequently filed charges against the chain for unfair labor practices, and general counsel for the NLRB filed a complaint alleging In-N-Out's "no pins or stickers" policy violates the NLRA. Upon investigation, the NLRB confirmed the rule was unlawful and ordered the Company to rescind the policy and any of its enforcement mechanisms.

After petitioning for review in April 2017, In-N-Out unsuccessfully argued that its ban on the "Fight for $15" buttons was among the special circumstances exempt from the Section 7 rule. The burger chain cited its need to maintain its carefully cultivated public image, of which its location-consistent uniforms are a part. However, the court found that dress codes do not constitute a public image special circumstance exception to override the NLRA provision.

The dress code argument also fell short because In-N-Out requires employees to wear buttons larger than the minimum wage pins twice per year: a "Merry Christmas" button around the holidays, and another advertising In-N-Out's children's foundation. Therefore, the court found that any public image argument that workers' uniforms be button-free could not be upheld.

According to the appellate panel opinion, "Since the addition of larger, more noticeable buttons to employee uniforms does not interfere with In-N-Out's public image, the board permissibly concluded that allowing employees to wear smaller buttons protected by Section 7, such as the 'Fight for $15' buttons, would not reasonably interfere with the company's public image."

The legal team at Shepherd, Finkelman, Miller & Shah, LLP ("SFMS") has significant experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

SFMS is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources

Greene, Kat. "In-N-Out Loses 5th Circ. Fight Over Wage Advocacy Buttons." Law 360. Last modified on July 6, 2018.

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