In-N-Out Asks Supreme Court to Look at Labor Regulators’ Mistreatment of Commercial Speech

innout“It’s the only fast food chain I actually like.” That was Anthony Bourdain’s verdict on In-N-Out Burger. It is not an unusual opinion. Thanks to its clean halls, happy employees, and fresh produce, In-N-Out enjoys fanatical brand loyalty. Its new locations attract crowds and helicopters. Its drive-thru lines are measured from space. It is acclaimed far beyond its Southern California homeland.

In-N-Out is not just popular; it’s distinctive. Each location is a kind of motor oasis. The building is decked in neon lights, glossy tiles, and palm-tree listellos. The servers wear white uniforms and soda-jerk hats. The menu is little more than a hamburger, a cheeseburger, fries, and a milkshake. The look is classic. The feel is easy. The faithful are ecstatic. In-N-Out is a Norman Rockwell painting, The Endless Summer, and Saint Becket’s shrine rolled into one.

Unlike Chotchkie’s, the restaurant frog-marching its waiters to ersatz self-expression in the movie Office Space, In-N-Out does not allow employees to add pins, buttons, or stickers to their uniforms. In April 2015 a pair of workers at an Austin, Texas, In-N-Out wore a button with the number 15—a reference to a campaign to raise the minimum wage to $15 an hour—in front of a clenched fist. Enforcing the “no flair” rule, the manager forbade employees from wearing the button on the job.

A labor group filed a complaint with the National Labor Relations Board. An administrative law judge ruled that In-N-Out violated § 7 of the National Labor Relations Act. The Board agreed. So did the U.S. Court of Appeals for the Fifth Circuit.

One might think that the point of having uniforms is to achieve uniformity. But § 7 gives employees the right to self-organize, to unionize, and “to engage in other concerted activities” that further their interests. Section 7 bars an employer from punishing an employee for labor-related speech.

This does not without more establish that In-N-Out must tolerate clenched-fist buttons behind its cash registers. Although an employer may not censure an employee for hosting a pro‑union Facebook group, nothing in § 7 requires the employer to advertise the group on the employee’s behalf. You may not, in the name of protecting your right of free speech, use your boss’s megaphone just because you lack one yourself.

According to the Board, however, an employer must privilege § 7 speech. Any rule that inhibits such speech—even a basic uniform policy—is “presumptively invalid.” An employer can maintain such a rule only by showing with “substantial evidence” that “special circumstances” justify it. Customers’ offense at an employee’s message does not create a special circumstance. Nor, except in “exceedingly narrow” contexts, does an employer’s need to protect its public image.

The gloss the Board has put on § 7 conflicts with the First Amendment. Like any other association, a business generally cannot be compelled to adopt another speaker’s message as its own. The government must identify a good reason for demanding such speech, and it must require no more forced speech than is needed to address a real—not speculative—problem. The Board’s § 7 protocol turns the First Amendment and the NLRA upside down.

What is more, the Board’s special-circumstances jurisprudence is murky. An employee who interacts with customers may wear a shirt that refers to himself as the employer’s “prisoner,” but not one that depicts himself as cartoon road kill. A nurse who interacts with patients may wear a button that says her employer has been “busted” for labor violations, but not one that demands “safe staffing.” An employer that wants to prohibit a protest item must use this case law to gauge whether the item is prominent “enough,” negative “enough,” or controversial “enough” to lack § 7 protection. Guessing wrong is a labor violation. Guessing right in a case in which the Board shifts the sand is—a labor violation.

In-N-Out has petitioned the Supreme Court for review, and WLF has filed a brief supporting the petition. The Court has directed the Board to respond.

The Board does not treat as binding the decisions of the federal courts of appeals. It considers itself free to persist in its views until the Supreme Court steps in. Step in here it should.

The Court should at minimum curtail the subjectivity of the special-circumstances test. The Court could hold, for instance, that an employer’s regulation of an employee’s customer-facing speech is presumptively valid. An objecting employee would have to show that the challenged rule singles out labor-related speech for disfavored treatment.

The Court could also go a step further. It could declare that, whatever employees might get to say in the backroom or off the clock, the First Amendment allows an employer to choose what they may say around customers, in the public workspace, during business hours. Although § 7 would still limit what an employer may say through its employees, what an employee may of right say through her employer would cease to be a proper topic of litigation. The answer in each case would be “nothing.”

The administrative law judge chided In-N-Out for suppressing employees’ individuality. But In-N-Out strikes a unique and wholesome tone that people value. Other restaurants may strike a different tone. So may In-N-Out’s employees—on their own time. What truly suppresses individuality is forcing In‑N‑Out to change.

At all events, employees’ statutory speech right must stop where their employer’s constitutional speech right begins. In-N-Out’s employees may raise awareness about labor issues; but In-N-Out should get to decide whether its burgers are served with a side of grievance.

Also published by Forbes.com on WLF’s contributor page.

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