On Nov. 20, 2023, a 5th Circuit panel ruled that the National Labor Relations Board (NLRB) decision in Tesla, Inc., 371 NLRB No. 131 (Aug. 29, 2022) was unlawful. As previously posted, this decision ruled that employers could not maintain a policy that interfered in any way with employees’ right under Section 7 of the National Labor Relations Act to display union insignia, including wearing union apparel.
While the 5th Circuit decision is not binding in Hawaii or any other location outside the 5th Circuit, this could impact court enforcement of other NLRB decisions related to employer restrictions on employees’ rights to display union insignia.
For now, however, Hawaii employers should be prepared to prove specific circumstances whenever their uniform or dress-code policies interfere with their employees’ right to wear or display union insignia, which is a form of protected communication.