The National Labor Relations Board (NLRB) has determined that an employee choosing to wear a political message insignia on a work uniform is legally protected activity under federal labor law, but only when it is at least loosely related to working conditions and depending on how the employer’s uniform policy is written.
The case began when a customer-facing Home Depot employee wrote the letters “BLM” (for Black Lives Matter) on his orange uniform apron. After his managers ordered him to remove the initials, he filed a complaint with the NLRB and the resulting case eventually landed in the laps of the full board. The board ruled 4-1 in his favor, holding that he should not have been required to remove the letters and allowing him to return to his job.
In the end, the board determined that the employee’s resulting decision to resign over the management directive regarding his uniform amounted to a “constructive discharge,” entitling him to backpay and reinstatement in his previous position.
In the past, the board addressed the issue of whether employers can require their employees not to alter or add to their company uniforms. Past cases have revolved around union insignia and buttons, often in reference to organizing campaigns or related to other union activities. In 2022, the Biden-era NLRB ruled that workplace dress codes and uniform policies that prevent employees from wearing pro-union apparel of any type are automatically presumed to be unlawful.
A complicating factor in the Home Depot case is the fact that BLM is not a union and that voicing support for it in the workplace does not immediately appear to have anything to do with union activities or federal labor law protecting workers’ ability to speak out about wages and working conditions.
However, the board majority determined that the BLM marking was a “logical outgrowth” of earlier workplace complaints around racial discrimination and harassment issues even though the record did not directly link the two, explain attorneys John F. Ring and David R. Broderdorf, who are partners in the law firm of Morgan Lewis (Ring also served as NLRB chairman during the Trump administration).
For federal labor law protections to be extended to employee activities that are unrelated to unionization or collective bargaining, the activity must be considered to be “concerted,” which means it involves two or more employees, and must be undertaken with a goal or purpose of “mutual aid or protection” of employees, Ring and Broderdorf note.
They point out that individual employee activity can be considered “concerted” in select circumstances, including activities that are:
* Engaged in with the approval or authority of other employees.
* Seeking to initiate, induce, or prepare for group action.
* Bring truly group complaints to the attention of management.
* Can be considered a “logical outgrowth” of related and protected concerted activity.
Seeing Connections
In regard to the Home Depot case, the NLRB relied on the logical outgrowth theory. As a result, it held that the employee’s individual activity of wearing a BLM marking on a Home Depot apron was an extension of prior workplace complaints about racial discrimination and harassment that began shortly after the employee started working there six months earlier.
The NLRB majority also rejected Home Depot’s arguments that special circumstances had justified restricting the BLM marking on the employee’s uniform. The company contended that even if labor law protections covered the BLM marking, “special circumstances” had allowed for management to direct the employee to remove what it considered to be a publicly controversial message.
Home Depot also raised concerns over the impact of appearing to promote the controversial BLM message on the company’s public image. It also expressed additional concern about employee safety based on earlier incidents of customer confrontations over this particular message, as well as the potential for creating employee dissension.
In his dissent, Republican board member Marvin E. Kaplan said the BLM marking was not “concerted” or for “mutual aid or protection” under federal law, and as such Home Depot could legitimately direct the marking’s removal. He argued that there was no “plainly evident” connection between protected, concerted activity and the challenged activity.
Kaplan also pointed out that BLM is a global organization that, since it first came to prominence in 2013, has not focused on workplace discrimination issues but instead community, political or societal issues, including the killing of George Floyd by police officers. To assume that the BLM logo is related to Home Depot discrimination complaints is illogical and speculative, he asserted.
Employers faced with any workplace complaints and protests, even where only a single employee is involved, must account for the potential that the NLRB will deem purely individual employee activity is protected by labor law, Ring and Broderdorf advise.
“In addition, workplace activity linked to political or societal causes is now subject to labor law protection where it has any temporal or subjective connection to any workplace complaint or dispute,” they say. As a result, employers should expect the NLRB to reject most “special circumstances” justifications for restricting employee uniform messaging or other activities even in customer-facing areas.
