NLRB Says Political Messaging on Business Uniforms is OK, Sometimes

The National Labor Relations Board (NLRB) has determined that an employee choosing to wear a political message insignia on a work uniform constitutes a 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 apron. After his superiors ordered him to remove the initials, he filed a complaint with the NLRB and the resulting matter ultimately landed in the entire board. The board ruled 4-1 in his favor, finding he should not have been forced to remove the letters and allowing him to return to his job.

Ultimately, the board determined that the employee’s decision to resign due to management’s direction regarding his uniform amounted to a “constructive discharge”, entitling him to back pay and reinstatement to the job. his previous position.

In the past, the commission has addressed the question of whether employers can require their employees not to change or add uniforms to their business. Previous cases have involved union badges and buttons, often in reference to organizing drives or other union activities. In 2022, the Biden era The NLRB has ruled that workplace dress codes and uniform policies that prevent employees from wearing pro-union clothing of any type are automatically presumed illegal.

A complicating factor in the Home Depot case is the fact that BLM is not a union and expressing support in the workplace does not immediately appear to have anything to do with union activities or with federal labor law protecting workers’ ability to express themselves. wages and working conditions.

However, the majority of the board determined that BLM marking was a “logical consequence” of prior workplace complaints regarding issues of racial discrimination and harassment, 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 Morgan Lewis (Ring also served as chairman of the NLRB during the Trump administration).

For federal labor law protections to be extended to employee activities that are not related to unionizing or collective bargaining, the activity must be considered “concerted,” meaning that it involves two employees or more and must be undertaken with a goal or objective of “mutual assistance or protection” of employees, note Ring and Broderdorf.

They point out that individual employee activity may be considered “concerted” in certain circumstances, including activities that are:

* Engaged with the approval or authority of other employees.

* Seeking to initiate, induce or prepare a group action.

* Bring truly collective complaints to the attention of management.

* May be considered a “logical consequence” of a related and protected concerted activity.

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In the Home Depot case, the NLRB relied on the theory of logical growth. Accordingly, he found that the employee’s individual activity of wearing BLM marking on a Home Depot apron was an extension of prior workplace complaints regarding racial discrimination and harassment that had begun shortly after. time after the employee started working there six months earlier.

The NLRB majority also rejected Home Depot’s arguments that special circumstances justified restricting BLM marking on the employee’s uniform. The company argued that even though labor law protections covered BLM tagging, “special circumstances” allowed management to order the employee to remove what it considered to be a publicly controversial post.

Home Depot also raised concerns about the impact of promoting BLM’s controversial message on the company’s public image. He also expressed additional concerns about employee safety based on previous incidents of confrontations with customers over this particular message, as well as the risk of creating dissension among employees.

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 that as such, Home Depot could legitimately order the removal of the marking. He argued that there was no “patently obvious” link between the protected and concerted activity and the challenged activity.

Kaplan also pointed out that BLM is a global organization that, since gaining prominence in 2013, has focused not on issues of workplace discrimination but rather on community, political or societal, including the murder of George Floyd by police officers. Assuming the BLM logo is linked to Home Depot’s discrimination claims is illogical and speculative, he said.

Employers facing workplace complaints and protests, even when only one employee is involved, should consider the possibility that the NLRB may consider purely individual employee activity to be protected under employment law , advise Ring and Broderdorf.

“In addition, workplace activities related to political or societal causes are now subject to labor law protection when they have a temporal or subjective connection to a workplace complaint or conflict,” they say. As a result, employers should expect the NLRB to reject most “special circumstances” justifications for restricting uniform employee messaging or other activities, even in customer-facing areas.