NLRB and First Circuit Consider Black Lives Matter Elements in the Workplace | Manatt, Phelps & Phillips, LLP

The National Labor Relations Board (NLRB) and the 1st U.S. Court of Appeals have weighed in on employees wearing Black Lives Matter items at work, with the Board siding with the employee and the appeals panel federal government rendering a mixed decision.

Antonio Morales Jr., who identifies as Hispanic, Mexican, and a person of color (and uses those pronouns), was employed as a sales specialist in the flooring department of a Home Depot in New Brighton, Minnesota.

Morales and several other employees often discussed their supervisor’s racist behavior and reported her on several occasions. Employees also expressed disappointment with management after their Black History Month display materials were repeatedly torn down and thrown in the trash.

Throughout Morales’ employment, they wore the hand-drawn initials BLM on their aprons. Although no one had ever said anything before, during a call with management about racial concerns in the store, Morales was informed that the BLM on his apron was violating the dress code and they needed to remove it.

Morales refused and resigned. They then filed a complaint with the NLRB. In a 3-1 decision, the Board found that Morales’ refusal to remove the BLM marking from his work apron was a concerted activity protected by the National Labor Relations Act (NLRA) as a consequence of their concerns about racist activities in the workplace.

“The file clearly demonstrates the existence of a collective complaint concerning working conditions,” the Council wrote. “Specifically, Morales and his colleagues raised objections regarding (Home Depot’s) racially discriminatory working conditions and the manner in which (Home Depot) responded to those concerns.”

Home Depot began asking Morales to remove BLM marking in meetings in which Morales voiced the group’s concerns about Home Depot’s response to discriminatory working conditions and articulated the connection between Morales’ display of BLM and these concerns of the group.

“In these circumstances, Morales’ insistence on continuing to wear the BLM marking on his apron was, at a minimum, a logical consequence of the employees’ prior concerted activities,” the Board concluded.

Home Depot failed to demonstrate special circumstances justifying a ban on BLM markings, the NLRB added, because the employer not only permitted but encouraged employees to personalize their aprons by adding written messages, images and other elements, including LGBTQ pride symbols, holiday symbols and badges. professional or college sports teams.

The Commission found that Morales was released from statutory release and ordered Home Depot to compensate him for any loss of income and offer him full reinstatement to his former job.

In the First Circuit, a trio of Whole Foods Market employees who wore BLM masks at work and were fired for repeated dress code violations filed a Title VII lawsuit, alleging retaliation.

The district court granted the employer’s motion for summary judgment against the three employees, but the federal appeals panel reversed the decision regarding one of the employees.

Savannah Kinzer worked at a Whole Foods store in Cambridge, Massachusetts, and began wearing a BLM mask at work in late June 2020, to express support for the Black community and to protest Whole Foods’ discipline of employees who had worn such masks to others. stores.

The first time she wore the mask, she was asked to replace it; When she refused, she was sent home and given one point under the employer’s point system for enforcing its time and attendance policy.

Over the next few weeks, she wore her mask several times to work and received extra points. Kinzer also organized his co-workers to join his efforts as well as protests outside the store that attracted community members and officials and garnered media attention.

Kinzer’s activity was well known to Whole Foods management, with internal emails describing her as the “chief agitator” and “the self-appointed activist voice of the group.”

One morning, Kinzer called her supervisor to tell him she would be late because her bicycle tire had been stolen. The supervisor assured Kinzer that her lateness would be excused because the circumstances were beyond her control, but Kinzer was fired later that day after management decided to give her one last point.

Unlike the other two plaintiffs, Kinzer was able to point to specific facts demonstrating that Whole Foods’ reliance on its accumulation of attendance points was a pretext for retaliation, the court said.

The record supports the proposition that transportation issues beyond an employee’s control are generally subject to leniency, the court said, supported by testimony from Kinzer’s supervisor who said termination “could be reprisals.”

Additionally, management’s behavior toward Kinzer and the timing of his termination, in the wake of his protected activity, supported its theory of retaliation, the First Circuit said.

To read the Commission’s decision and order in Home Depot United StatesClick here.

To read the review in Kinzer v. Whole Foods MarketClick here.

Why is this important

These decisions provide an important lesson to employers about the risks associated with enforcing a dress code. At Home Depot, the employer encouraged its workers to personalize their aprons and when an employee was instructed to remove his BLM letters, amid discussions of racial discrimination, the Commission found that this constituted a violation of the NLRA. Whole Foods successfully demonstrated enforcement of its dress code for two of three plaintiffs who sued after being fired for wearing BLM masks, but the third was able to survive summary judgment with evidence of ‘a pretext where the policy was applied to him differently. .