“Common sense sometimes matters in resolving legal disputes.” That’s how the D.C. Circuit began its opinion reversing a widely publicized 2011 decision by the NLRB finding that AT&T Connecticut had committed an unfair labor practice when it banned AT&T employees from wearing “Prisoner” shirts to the homes of customers.
If you attended our annual employment law seminar back in May, you may have heard us talk about the AT&T prisoner case and how surprising it was that the NLRB found AT&T unjustified in banning technicians from wearing t-shirts to the homes of customers that said “Inmate” on the front and “Prisoner of AT$T” on the back. The NLRB said there were no special circumstances justifying the Company’s ban because the t-shirts would not cause fear in customers since they could not be confused for actual prison garb.
“No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.”
The D.C. Circuit focused on something we don’t often read about in cases – common sense. The Court disagreed with the NLRB and said the “special circumstances” test was not whether the customers would confuse the shirts with actual prison garb but whether the Company could reasonably believe that the message would harm its relationship with its customers or its public image. According to the Court, to resolve the case one need only ask, “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?”
The D.C. Circuit’s ruling does not change our takeaway from the seminar – dress code policies should be specific as to what clothing is impermissible and should avoid broad generalities that could be construed to impinge on union-related activities. However, employers can now breathe (a little) easier knowing that common sense sometimes matters in the policy decisions they make.