In yet another decision catching the headlines, earlier this week the National Labor Relations Board ruled that Home Depot violated the National Labor Relations Act by barring an employee from wearing a work apron on which they had drawn the letters "BLM" (an acronym for Black Lives Matter) in 2021.
Under the NLRA, workers, regardless of whether they are members of a union, are protected from employer interference with their right to engage in concerted activities with fellow employees to collectively bargain or to seek "mutual aid or protection" concerning the terms and conditions of their employment.
The board ruled Home Depot had violated the act by forcing the employee to remove the marking from their work apron or face termination. Because the display of the insignia related to prior employee protests of racial discrimination at the Minnesota store where the employee worked, the board deemed it to be a "logical outgrowth" of prior concerted activity protected by the act.
Home Depot sought to limit the display of what it called "controversial" messages by employees, fearing they would concern customers and possibly be mistaken for a corporate endorsement of the broader movement. The board rejected this argument, noting that Home Depot had allowed other similar messages by employees on their aprons and that board precedent has long refused to yield the exercise of an employees' protected rights to customer concerns.
In bringing the case, the board's general counsel, Jennifer Abruzzo, revived an argument and sought a ruling from the board deeming all protests of discrimination in the workplace to be "inherently concerted" activity, meaning that such conduct is protected activity regardless of whether employees have acted together in opposing such practices. Pushing back on Abruzzo's sweeping request (which would have vastly expanded employee protections under the act), the board refused to decide on that issue, instead focusing on the fact that the issue related to prior concerted activity by store employees.
Although the board did not go as far as Abruzzo requested, this is likely not the end of such asks. Regardless, this decision continues to echo the current board's stern position on protecting employee speech in the workplace and builds on its recent decisions in Tesla, Lion Elastomers, and Miller Plastic Products. As such, employers need to not only remain diligent in their approach to managing these issues as they arise, but also continue to monitor this evolving landscape – one that is very much of particular interest to this board.
In its ruling, the federal agency said that the worker's refusal to remove the "BLM" marking from their uniform was considered to be "concerted" and "for mutual aid or protection" because of earlier protests by workers at the store about racial discrimination.
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