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In-N-Out Burger Asks United States Supreme Court to Vacate Fifth Circuit Decision to Allow "Fight for 15" Buttons on Work Uniforms


Last year, the Fifth Circuit issued a much anticipated decision in the In-N-Out v. National Labor Relations Board case.  That case arose out of a dispute over an employee's placement of a "Fight for 15" button on his work uniform.  As In-N-Out argued, it had a long history of not allowing employees to alter their uniforms.  In-N-Out pointed out that it had a decades old uniform policy that dictated the hats, hair, shirts, undergarments, jackets, pants, name tags/pins, aprons, socks/shoes, jewelry, fingernails, makeup/facial features, sunglasses, and prescribed transition lenses, personal hygiene, and tattoos of its workers.  Consequently, In-N-Out stated that the employee that placed a "Fight for 15" button on his work uniform was in violation of the company's uniform standard and had to take it off.  The employee filed an unfair labor practice charge and stated that he was protected under the National Labor Relations Act ("NLRA") and In-N-Out could not lawfully force him to remove the button.  The Administrative Law Judge ("ALJ") and Fifth Circuit Court of Appeals both held that In-N-Out's ban on employees adding items to their uniforms violated the NLRA.  The ALJ and Fifth Circuit Court of Appeals further held that neither the public image nor food safety concerns justified In-N-Out's ban on the buttons.

Unsurprisingly, In-N-Out filed a petition for writ of certiorari with the United States Supreme Court in mid September.  The company based its petition on several grounds, including a claim that the Fifth Circuit failed to reconcile its ruling with the Supreme Court's ruling in Janus v. AFSCME (which held that the government cannot compel private citizens to endorse or subsidize messages they do not agree with), that the Fifth Circuit failed to address a recent Supreme Court decision which introduced a new legal standard for evaluation of employer workplace policies, and the Fifth Circuit also erred in its application of the "public image" prong of the special circumstances doctrine.

As of this writing, the Supreme Court has not chosen whether or not to accept the petition.  An extension was given to the Solicitor General until January 24, 2019 to file a response.  I would not expect much activity on this until after that date.  Once a response is filed, it will be circulated among the Justices for review and a decision will then be made on whether to accept the petition.  Stay tuned.


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