The National Labor Relations Board (NLRB or the Board) recently expanded the types of messaging employees are permitted to display in the workplace when it ruled an employee’s Black Lives Matter uniform marking was protected by labor law—and the Board has signaled that even greater expansion may be coming.

In Home Depot, USA, 373 NLRB No. 25, the NLRB held that a customer-facing employee who wrote “BLM,” an initialism for “Black Lives Matter,” on his orange Home Depot apron was engaged in protected concerted activity under the National Labor Relations Act (NLRA). As a result, Home Depot’s directive for him to comply with the dress code policy [1] and remove the marking violated labor law, and the employee’s resulting decision to resign over the directive amounted to a “constructive discharge” entitling him to backpay and reinstatement.

Reversing the administrative law judge, the Board majority viewed the BLM marking as a “logical outgrowth” of earlier workplace complaints around racial discrimination and harassment issues even though the record did not directly link the two. The NLRB also rejected Home Depot’s arguments that special circumstances justified restricting the BLM marking on the employee’s uniform.

BLM MESSAGE A ‘LOGICAL OUTGROWTH’ OF WORKPLACE DISCRIMINATION CONCERNS

For labor law protection to attach to employee activity unrelated to unionization or collective bargaining, the activity must be (1) “concerted,” which means it involves two or more employees, and (2) undertaken with a goal or purpose of “mutual aid or protection” of employees. [2]

Individual employee activity can be “concerted” in select circumstances, including

• activity engaged in with the approval or authority of other employees
• activity seeking to initiate, induce, or prepare for group action
• activity to bring truly group complaints to the attention of management
• activity that is a “logical outgrowth” of related and protected concerted activity [3]

The Board relied on the logical outgrowth theory and 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 six months prior. [4]

Pointing to record evidence showing that undisputed protected, concerted activity had occurred, the Board found there was sufficient evidence to deem the BLM marking a “logical outgrowth” of protected activity given the temporal proximity of the activity to the discrimination and harassment concerns. The Board also considered the Charging Party employee’s explanation as to the connection between workplace complaints and the BLM marking. [5]

REJECTION OF CONCERNS OVER CUSTOMER-FACING EMPLOYEE UNIFORMS

Home Depot argued in defense that even if labor law protection attached to the BLM marking, “special circumstances” allowed for Home Depot to instruct the employee to remove what it considered a controversial message. Home Depot raised concerns of public image, employee safety based on prior incidents of customer confrontations over the message, and employee dissension.

The Board majority rejected each one, however, explaining that (1) Home Depot otherwise allowed some personalization of the aprons and workplace apparel, (2) there was no concrete, imminent safety risk from customers, and (3) employee conflict/dissension is not a sufficient concern absent obscene or objectively offensive language. [6]

EXPANSION OF ‘INHERENTLY CONCERTED’ DOCTRINE ON THE HORIZON?

The NLRB General Counsel argued that the Board should adopt an even broader protection of workplace messaging under the novel “inherently concerted” doctrine. Under this doctrine, the requirement for “concertedness” is effectively eliminated as a requirement for labor law protections, and any individual employee action raising workplace concerns is protected because it ultimately leads to the benefit of all employees.

To date, the Board has limited the inherently concerted doctrine to certain categories of critical workplace issues, namely wages, work schedules, and job security. The General Counsel has advocated for the expansion of protections for individual complaints or activity to other categories, including racial discrimination. While the Board declined the General Counsel’s request for such an expansion to racial discrimination in this case, it signaled a willingness to do so in a future appropriate case. [7]

Notably, the Board currently has several pending cases raising similar racial discrimination issues for potential expansion of the inherently concerted doctrine, and the General Counsel has indicated an interest in further expansion of “inherently concerted” to other areas, including workplace safety and health.

DISSENT LAMENTS THAT POLITICAL AND SOCIAL JUSTICE CAUSES ARE NOW DE FACTO WORKPLACE CAUSES

Dissenting Member Marvin E. Kaplan concluded that the BLM marking was not “concerted” or for “mutual aid or protection” within the meaning of the NLRA, and as such Home Depot could legitimately direct that the employee remove the marking from the required customer-facing uniform. [8] Member Kaplan reasoned that the logical outgrowth theory is not applicable absent a “plainly evident” connection between protected, concerted activity and the challenged activity, which he found lacking here. [9] Temporal proximity and/or similar subject matter are not sufficient. [10]

Member Kaplan further emphasized that Black Lives Matter is a global organization that, since at least 2013, has not focused on workplace discrimination issues but instead community, political, or societal issues, including the killing of George Floyd by police officers, so to assume that BLM “related” to Home Depot–specific racial discrimination complaints that were the subject of legitimate protest is illogical and speculative. [11]

In the end, Member Kaplan signaled that the Board has “open[ed] up a Wild West frontier of concerted activity by individual employees.” [12]

PRACTICAL TAKEAWAYS

Employers faced with any workplace complaints and protests, even where a single employee is involved, must account for the potential that the NLRB will deem purely individual employee activity as protected by labor law.

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. Employers should expect the NLRB to reject most “special circumstances” justifications for restricting employee messaging or other activities even in customer-facing areas.

[1] The Home Depot dress code and apron policy relevantly provided that a work apron is “not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” Home Depot, slip op. at 15. Notably, the NLRB General Counsel did not allege, and the NLRB did not hold, that the policy language facially violated labor law.

[2] Slip op. at 6.

[3] Id.

[4] Slip op. at 7-9.

[5] Id.

[6] Slip op. at 11-13.

[7] Slip op. at 9, n.23.

[8] Slip op. at 21.

[9] Slip op. at 27 (“[S]o the link between prior protected concerted activity and subsequent individual activity must be sufficient apparent to a reasonable person aware of the relevant facts for the latter to constitute a logical outgrowth of the former.”).

[10] Id. (“The mere fact that an action by an individual [took] place after protected concerted activity does not establish that it grows logically out of that activity[.]”).

[11] Slip op. at 28.

[12] Slip op. at 32.

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