What happened?

On February 21, 2024, the NLRB ruled that a national retailer must allow customer-facing employees to write “Black Lives Matter” on their uniforms. The decision applies to both unionized and non-unionized companies.

What are the details?

The decision may have created a “you can’t put that genie back in the bottle” situation to allow the public display of political and social causes in the workplace. 

Background: 

• Antonio Morales worked for a large retailer and wrote the initials “BLM” on his uniform in a show of support for co-workers he believed were being treated unfairly.

• Employees discussed mistreatment at work, raising concerns with management by Morales sending an email objecting to the conduct and calling for a broader discussion on racial injustice and discrimination at work.

• Management representatives informed Morales that wearing “BLM” violated the company dress code, which prohibited workers from wearing political messages unrelated to the workplace.

• They informed him that he could not work unless and until he removed the “BLM” initials.

• Morales refused, resigned his employment, and filed an unfair labor practice charge with the NLRB.

The NLRBs decision:

• The Board held that the employer violated federal labor law by directing Morales to remove “BLM” and enforcing its dress code policy to prohibit him from wearing it.

• The Board also held that the employer constructively discharged Morales, meaning that Morales had no choice but to resign.

• The wearing “BLM” was a protected concerted activity, that that was not new, and that political and social messaging can be protected conduct when there is a nexus between the messaging and employees’ terms and conditions of employment.

According to Fisher Phillips law firm review, “…what is new for employers in this case is the required nexus between political messages and the workplace” (Link), and “The Board’s decision here is yet another endorsement of the General Counsel’s prosecutorial agenda…”, whether people like it or not (Link).

Per the Proskauer Rose law firm review, “…the NLRB declined to adopt a broader objective advanced by the NLRB General Counsel that protesting civil rights issues on the job is “inherently concerted” activity that is protected by Section 7 of the Act. (Link).”

Business Considerations

• Conduct a review of your dress code policy and any other policy and practice that may necessitate an update to mitigate risk in this area of employment law.

Resources

• Board Rules Employee’s “Black Lives Matter” Action at Home Depot Was Protected
• Home Depot USA, Inc., and Antonio Morales Jr. Case

Source References

• Revisiting Your Dress Code Policy (VensureHR)
• Labor Board’s “BLM” Ruling Will Require You To Review Your Dress Code and Other Workplace Policies: Your 5-Step Guide (Fisher & Phillips LLP.)
• It’s Protected: NLRB Finds “Black Lives Matter” Insignia on Employee Uniform Constitutes Protected Activity Under Circumstances (Proskauer Rose LLP.)
• Display of BLM Insignia = Protected Concerted Activity (Shawe Rosenthal LLP.)

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