Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
In a ruling that could have far reaching implications in both unionized and non-union work environments, the National Labor Relations Board (“NLRB” or “Board”) ruled that Home Depot violated Section 7 of the National Labor Relations Act (NLRA) when it terminated an employee for refusing to remove a BLM logo from his company apron that violated Home Depot’s dress code prohibiting the display of causes or political messages unrelated to the workplace.
Although not the first time the Board has addressed the right of employees to don attire with BLM insignia, the ruling provides insight on the factors the Board will find sufficient to rule that employer dress codes must yield to employees’ expressions of support for social justice movements or other political causes.
The Prior Rulings
In May 2023, an NLRB Administrative Law Judge (ALJ) found that Fred Meyers Stores, Inc. violated the NLRA by barring employees from wearing BLM insignia. The ALJ found that the display of BLM messages on work uniforms was protected activity under Section 7 of the NLRA because employees were advancing their interests as employees to advocate for “an anti-racist, pro-civil rights and pro-justice workplace.” In addition, although the wearing of the insignia was in violation of the company dress code, the store had tolerated other pins and face masks with LGBTQ+, inspirational messages and sports team insignia, and thus the store’s failure to bargain with the Union before enforcing the ban against BLM insignia violated Section 8(a)(5) of the NLRA.
In December 2023, another ALJ came to an opposite conclusion, finding that the wearing of BLM apparel was not protected activity under the NLRA, and Whole Foods was free to discipline employees who wore the insignia in violation of the company’s dress code policy. The ALJ cited the lack of any evidence of grievances or concerns of racist workplace behavior before employees began to wear the BLM insignia on their clothing, and thus concluded that the messages were not directly related to the terms and conditions of employment.
The Home Depot Ruling
Unlike the prior decisions, the Home Depot ruling was a 3-1 decision by full Board, which overruled an ALJ’s ruling that the wearing of BLM insignia was not protected activity.
The Board reiterated that the NLRA guaranteed employees the right to engage in “concerted activities” with co-workers for “mutual aid or protection” if aimed at improving terms and conditions in the workplace. The Board then painstakingly detailed numerous complaints by a group of Home Depot workers alleging racial discrimination at its Minneapolis area location that preceded management’s directive to one member of the group to remove the BLM insignia from his apron or face termination. The Board reasoned that the wearing of the BLM insignia constituted protected concerted activity because it was a “logical outgrowth” of these previous protests about workplace racism and was an effort by these employees to bring the issue to the attention of Home Depot management.
Although the Board observed that dress codes barring the display of political or religious messages are not facially unlawful, under the circumstances of this case – where the BLM message was on the heels of complaints of racism in the workplace – Home Depot violated Section 8(a)(1) of the NLRA by applying its facially-neutral dress code policy to restrict protected Section 7 activity.
The Impact of Home Depot
The Home Depot ruling should not be construed as a repudiation of dress codes that prohibit the display of messages in support of social justice movements. However, before enforcing such policies, employers should carefully assess the situation to ascertain whether there is any evidence that the donning of otherwise prohibited insignia was prompted, in whole or in part, by conditions in the workplace. If such a connection can be demonstrated, the Board is more likely to find that the messaging is part of protected concerted activity that trumps dress code prohibitions, not merely expressions of personal beliefs that are unrelated to the workplace and subject to enforcement of a dress code.