In-N-Out Burger Loses “Fight For $15” Button Case

Labor Law

This information provided by Clyde Jacob of Fisher Phillips.

Last Friday, the U.S. Court of Appeals for the Fifth Circuit in New Orleans, which has jurisdiction over Texas, Louisiana, and Mississippi, upheld a National Labor Relations Board case that In-N-Out Burger violated the nation’s labor laws with a uniform rule that prohibited employees wearing buttons or pins on their uniforms. In the case, the company forbade employees at a restaurant located in Austin, Texas from wearing “Fight For $15” buttons on their uniforms.

In-N-Out Burger argued that its button rule fits under a category of special circumstances because it long maintained a carefully curated public image with employee uniforms as part of that image. The Board and the Court, however, found that the prohibition in this instance of buttons related to terms and conditions of employment, protected under the National Labor Relations Act, was undercut by the company’s requirement that employees wear larger buttons twice a year – once at Christmas and at a second time in April to promote the company’s foundation for abused children. A copy of the decision is attached, and on pages 3 and 4 you can see photographs of the three actual buttons involved.

The key to the case was the inconsistent application of the no button and pin rule permitting them in two other instances. The case is concerning because In-N-Out Burger required the two buttons to be worn as part of the uniform and prohibited at all times any other buttons or pins.

It is important for employers to monitor any work rules restricting buttons and pins on required uniforms to ensure they are consistently applied across the board. Keep in mind that protected buttons are those that deal with wages, benefits, and terms and conditions of employment, including unionization. Buttons which are profane or relate to other non- work subjects, such as sports, rock/country music, animal rights, politics, etc., can be restricted.

In N Out Burger Decision on Scribd