Q: My employer said a shirt I wore to work was offensive and that I wasn’t allowed to wear it anymore. Can my employer keep me from wearing my shirt?
A: Generally, an employer can restrict employees from wearing clothing that is disruptive, discriminatory or offends customers. However, your employer must consistently apply business-related reasons for such decisions and must not restrict employees’ rights to communicate about matters of common concern in the workplace.
Q: So, do I have the right to communicate my ideas about matters of common concern in the workplace?
A: The National Labor Relations Act, which generally governs relations between unions and employers, says that employees of private companies or other entities have the right to communicate with each other about the terms and conditions of their employment. The law describes such communications as “protected concerted activity”; “concerted” refers to employees communicating with each other about the workplace. (Government employees have similar rights because of their right to association under the First Amendment to the U.S. Constitution.)
Even if your communications do not involve the immediate presence of another employee, they are considered to be “concerted.” This means that the law can actually protect items of clothing that convey a message, even if you are not speaking or writing to other employees about the message on the shirt.
Q: So, exactly what kinds of communications does this law protect?
A: Employee communication about any aspect of employment may be protected concerted activity. For example, communications about pay, benefits, work rules and supervision are usually protected. Employees are permitted to communicate with each other about how much money they make, although employers sometimes do not understand this and impose a rule against such communications. So, an employee who wears a shirt that says, “Company XYZ: Increase Our Pay,” likely will be protected by the law.
This right is not unlimited, however. For example, if the employer reasonably believes that the communication would harm the company’s relationship with its customers or its public image, then the employer may restrict employees’ communications. In one recent court decision, the court approved an employer’s decision not to allow workers who interacted with customers to wear shirts that suggested the workers were prisoners of the company. The court acknowledged that such shirts could hurt the company’s relationship with its customers.
Q: Can a worker wear a union button or shirt or while at work?
A: Protected concerted activity generally would include expressing support for a union or communicating about matters relating to a union.
Q: How do employees and employers know which communications are allowed and which are not?
A: It is difficult to determine when an employer may reasonably restrict communications, and it can also be difficult for employees to know whether communication is about the terms and conditions of employment or simply an attack on the employer or another employee. For example, attacking a supervisor on Facebook probably would not be protected concerted activity if the communication does not relate to some aspect of the employment relationship. However, courts have sometimes allowed some profanity and insults if the core message relates to the terms and conditions of employment.
If you are an employee, use common sense about what you are communicating and recognize that your right to communicate is not unlimited. If you are an employer, it is wise to consult with your lawyer before taking action against an employee for acts that involve communication.
Q: Does my employer have to stop certain communications?
A: Yes. Employees have a right to work in an environment free of discrimination based on any protected class. Therefore, your employer must take reasonable measures to stop any communications that discriminate based on race, national origin, gender, age, religion or disability. Your employer might be found to be creating an unlawful hostile work environment for failing to stop such communications.
Q: Does a “hostile work environment” only have to do with discrimination?
A: “Hostile work environment” originally referred to as an unlawful discriminatory environment, but now the term often refers to any unfavorable working condition. An environment that is hostile is not necessarily illegal, however, if the behavior prompting the complaint is not based on the recipient’s membership in a protected class.
Conduct that may be thought of as “hostile” or bullying, such as making fun of an employee that is “only” unkind but not discriminatory, may not be illegal. There have been efforts to pass workplace bullying laws in many places. In most places (including Ohio), there is no general law against workplace bullying, but workplace bullying may violate the employer’s reasonable workplace rules, as well as common sense and decency.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Bill Nolan of the Columbus office of Barnes & Thornburg LLP.