Mask Wearing – Employees and Customers May Utilize to Express Their Political or Social Views

By Michael Burns, courtesy of SBAM Approved Partner ASE

In May EPTW published an article conjecturing that employers would likely face masking issues involving inappropriate images and messages on worker face wear. We stressed, for the most part, that employers have control over what employees wear in the workplace unless overridden by formal federal or state safety and health regulation or a collective bargaining agreement.

Let’s start with the positive that if workers are wearing face masks, at least employers are most of the way there safety-wise. Safety first. Employers should enforce safety rules such as the wearing of personal protective equipment (PPE) uniformly. That said, masking is not considered PPE, but employers are still responsible for ensuring appropriate safety measures such as ensuring that masking is in place.

Now we come to the relatively new issue of mask messaging. The use of the mask by workers to communicate a message or point of view while being worn.  Historically, wearing of badges, pins, or clothes with messages is not new and can be controlled. Workers in the process of organizing a union have worn all sorts of items bearing the message of organizing or unity and in that situation are given latitude to do so. Employers with rules on dress or with a dress code have pushed back and sought to prohibit the wearing of such messages. Depending upon how the employer has set up and administered the rule(s) they have “won some and lost some.” The law that typically is in play on wearing protected messages on clothing while at work is the National Labor Relations Act (NLRA). The current rule under the Boeing decision (2018) conveying terms and conditions of employer holds that if the employer has a legitimate business necessity for a rule restricting the wearing of certain insignia or messaging the rule will not be held in violation of the NLRA. However, this can be very fact specific analysis.

“The majority of Courts that have ruled on this issue have held that employees have a right to wear union insignia unless the employer shows some ‘special circumstance’ that would require the banning of such insignia in order to reduce employee dissension or distractions at work, maintain employee safety and discipline, protect machinery or products, or project a certain public image.

Special circumstances are probably most likely to arise where:

Organizing for collective bargaining purposes is not the only purpose behind wearing of mask messages. Today, employers are being confronted by employees wearing messaging supporting the Black Lives Matter, social justice, and other movements. Check other state law, but in Michigan employers have the right to limit or prohibit political messaging by employees on company time. This type of political messaging can be both inward facing (for fellow workers) or outward facing (for customers and the public).

Bottom line, from a legal standpoint, employers have the right to have rules restricting the wearing of political messaging items and messaging it deems it does not want its employees to wear at work and during working hours. The employer must clearly state a rule or policy on this, however. Further it must administer and enforce the policy consistently. It is easier to enforce this rule if the employer restricts all posting or displaying of non-business flyers, posters, buttons, or other political messaging insignia.

At this point exceptions now start.

This is where it gets tough. Employers as a practice can be somewhat inconsistent in the tolerance of political speech in the workplace. For example, is the wearing of a small pink ribbon in support of breast cancer survivors on a given day a breach of a rule prohibiting the wearing of messaging? Is that the same as wearing a mask with the image of an unborn child in support of pro-life? Is that the same as wearing a mask stating Black Lives Matter? And is wearing a mask with a rainbow coloring on it just pretty or is it a statement of support for LGBTQ? And then we get to hate speech and the wearing of an armband with a swastika on it.

Is the wearing of a Black Lives Matter or other such messaging a political statement, a personal statement, or is it a protest of alleged racially discriminatory working conditions? The answer to this would dictate whether a rule prohibiting political messaging would be upheld by the National Labor Relations Board (NLRB) and seen as unlawfully prohibiting protected concerted activity.

With dress code rules employers must be prepared to now confront not only employee relations issues, but public relations and customer relations issues.

What does an employer gain if they discipline an employee for violation of its rules and loses in the court of public and customer opinion? No less than Starbucks, Whole Foods, and McDonald’s have found themselves in the spotlight of media and internet scrutiny. Whole Foods has so far kept its dress code requiring workers to comply with its longstanding rules against wearing of anything with slogans, messages, and such. McDonald’s requires the wearing of its uniform but is reportedly preparing to provide pins and bracelets that will show support for Black Lives Matter should the employee wish to wear it. Starbucks went from prohibiting Black Lives Matter buttons as political messaging that “amplified divisiveness” to producing 250,000 t -shirts with a graphic expressing support for the movement that its employees could wear. And until these new t-shirts arrived, baristas could wear their own.

These are large employers with national and international brands to proactively manage and are in the public eye. Smaller employers may be able to have rules prohibiting forms of expression and possibly remain neutral.

Employers are faced with a tough choice of managing their business and workplace while avoiding being drawn into controversial and volatile issues. Unless the employer has a strong business reason to stand behind a no messaging while at work rule, it may not be commercially, politically, and social prudent to stand in the way of such messaging.

Next rule – make sure your social media policy states that employees may not state a political message on their on-line platform while identifying themselves as representing the employer at the same time.

Third rule – Employers should consider how to manage political and social issue discourse at work.

Employers will need to review their dress code rules and if needed adjust them accordingly to control for acceptable political messaging. Private employers have more latitude than public employers and smaller employers may be able to get away with more restrictive rules than larger employers that have to be sensitive to larger audiences and brand management issues. Whatever you do though, do it consistently.