This week, the National Labor Relations Board (NLRB) reversed a 2019 decision concerning union apparel bans in the workplace. This decision was the first of the Biden Administration era NLRB to shift precedent.

In the split decision, the NLRB ruled that any attempt by an employer to restrict an employee’s ability to wear union clothing or insignia is “presumptively unlawful.” Now, employers may only restrict workers from wearing pro-union clothing or insignia if they are able to establish “special circumstances,” representing a heightened burden for employers to justify limitations on employees’ apparel.

At issue was the employer’s apparel policy, which required employees to either wear black polos imprinted with the company’s logo or a black shirt with no logo. During a union organizing campaign, employees attempted to wear shirts bearing a union logo. The NLRB concluded that the employer’s policy implicitly prohibited employees from wearing pro-union apparel and insignia without the presence of special circumstances, as the employer had previously permitted production employees to wear different colored shirts or shirts with logos unrelated to the employer. Because no special circumstances were present to justify the policy, the NLRB ordered that the company rescind its policy prohibiting employees from wearing black shirts with pro-union insignia.

This decision marks the first time the NLRB has issued a ruling that overturns or materially shifts Board precedent under the Biden Administration. Employers should be mindful of the changing landscape.