Board Rules that Wearing BLM Markings Can Be Protected Activity Under the NLRA
On February 21, 2024, the National Labor Relations Board (“NLRB”) issued a decision finding that Home Depot violated Section 8(a)(1) of the National Labor Relations Act (“Act”) by using Home Depot’s dress code to require an employee to remove the acronym “BLM,” an initialism for “Black Lives Matter,” from the Employee’s work uniform. The decision was the latest in a run of NLRB decisions that employers should consider when applying workplace policies.
The NLRB reversed an Administrative Law Judge (“ALJ”)’s holding that Home Depot did not violate the Act because “BLM” does not have an “objective, and sufficiently direct, relationship to terms and conditions of employment.” The Act protects employees engaging in concerted activities, which is activity taken by two or more employees for the purpose of mutual aid or protection.
For several months, employees at the Home Depot store allegedly raised concerns to management about racially discriminatory behavior in the workplace. The NLRB deemed these concerns protected concerted activity. Management informed the Employee that the BLM insignia on his orange apron violated the dress code after the Employee sent an email to management requesting a more open dialogue regarding racial issues. The dress code and apron policy stated that the work apron is “not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” The Employee refused to remove the insignia. After management conditioned the Employee’s return to work on removing the initials, the Employee resigned rather than accept the condition. The NLRB concluded these events amounted to a constructive discharge.
According to the NLRB, the Employee’s refusal to remove the BLM marking was a “logical outgrowth” of the employees’ protected concerted activities because the Employee had specifically linked the BLM marking to showing support for coworkers in connection with group complaints.
The NLRB did not find any special circumstances justifying Home Depot’s interference with the Employee’s right to display the BLM insignia. Such justifying circumstances might include employee safety, damage to machinery or products, exacerbation of employee dissention, or unreasonable interference with the employer’s public image.
Although there was no allegation or finding that the dress code policy limiting political messages was facially unlawful, the NLRB found that that Home Depot violated the Act “by applying its facially neutral dress code and apron policy to restrict Section 7 activity.”
The NLRB ordered Home Depot to, among other things, cease and desist from prohibiting employees from engaging in protected concerted activities, reinstate the employee with backpay for lost earnings and benefits as well as compensation for other direct or foreseeable pecuniary harms, and post notice of the decision at the store where the Employee had worked.
When enforcing company policies, employers should first consider whether, in light of the surrounding factual circumstances, such action might be construed as restricting employees’ engagement in concerted activities. If you have questions about how this decision might impact your business, please contact a member of the McNees Labor & Employment Group.
