On February 21, 2024, the National Labor Relations Board (“NLRB”) ruled that Home Depot violated the National Labor Relations Act (“NLRA”) by terminating an employee who refused to remove the hand-drawn letters “BLM” (Black Lives Matter) from their work apron. This employee was one of several employees who concurrently drew BLM on their work aprons. Notably, the employees began drawing BLM on their aprons after complaining about racial discrimination at Home Depot.
The NLRA protects employees’ right to partake in “concerted activities” aimed at “mutual aid or protection,” irrespective of union representation. In this case, the Board decided the employee’s refusal to remove BLM markings constituted a “concerted” action. The Board emphasized that the BLM markings were in response to allegations of racial discrimination at Home Depot. Because of this, the BLM markings were viewed as an effort to communicate collective grievances to Home Depot management. Given that racial discrimination affects all employees’ working conditions, the action was deemed “for mutual aid or protection.”
The Whole Foods Counterexample
In contrast to this case, in May 2020, Whole Foods informed its employees that wearing BLM attire violated the company’s dress code and was not permitted. In this case, the Board ruled that wearing BLM attire did not constitute legally protected activity. Why? The BLM attire lacked a direct link to efforts aimed at enhancing employees’ working conditions. The judge highlighted, “There is no evidence indicating any employee concerns, complaints, or grievances regarding ‘racial inequality’ or racially-based discrimination at Whole Foods Market before or during the adoption of BLM messaging . . . . The evidence convinces me that the employer simply sought to avoid controversy and conflict within its stores, which it believed would arise from BLM messaging.”
Now what?
Employers aiming to uphold uniform or clothing regulations should exercise careful consideration. When employees unite behind a symbol to voice their workplace grievances, regardless of its broader political implications, that symbol is likely protected under the NLRA. Conversely, if employees wear a symbol entirely unrelated to the workplace that is merely social commentary, employers can prohibit such conduct.
Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
