Recently, the National Labor Relations Board (“NLRB”) ruled that Home Depot — “Where Doers Get More Done” — had done too much when it discharged an employee, Antonio Morales, for refusing to remove the hand-drawn letters “BLM”— the acronym for “Black Lives Matter”— from his orange work apron. Ruling the employee’s political message was connected to protected, concerted activity related to his working conditions under Section 7 of the National Labor Relations Act (“NLRA”), the NLRB ordered, among other things, that Home Depot reinstate Morales and compensate him for back pay. While the facts of the case are highly unique, the breadth of the NLRB’s decision may put employers in a quandary when it comes to controlling political messages in the workplace.
A Unique Confluence of Events
Morales began working for Home Depot in August 2020 in a suburb of Minneapolis, Minnesota, where George Floyd was killed by police a few months earlier. Almost immediately after hire and as social tensions continued to run high, Morales encountered racially discriminatory conduct from a fellow employee. Morales spoke about it with numerous other employees, and they complained, multiple times, to management. Home Depot took escalating disciplinary action against the subject employee, but her conduct continued. In fall 2020, Morales began wearing the BLM insignia on his work apron.
In February 2021, someone vandalized a Black History Month display in the employee break room. Management repaired the display and sent an email about tolerance, but Morales voiced that it was not enough and requested a storewide conversation about racism, which was denied. The display was vandalized a second time, and (again) management emailed “certain” employees about the incident and asked for “aware[ness]” of the display. This time, Morales replied to the email, again requesting a storewide conversation. He was called in to discuss his request with the manager, who was upset by Morales’ email. In that meeting, the manager questioned the BLM letters on Morales’ apron, claiming it violated the company’s dress code and apron policy’s ban on “displaying [on an apron] causes or political messages unrelated to workplace matters.” Even though Morales had BLM displayed on his apron for five months, Home Depot prohibited Morales from returning to work until it was removed.
Morales resigned. Seven days later, Home Depot terminated the employment of the individual about whom Morales had complained, posted, for the first time, the dress code policy, and directed the other employees to remove BLM from their aprons.
The NLRB’s Decision
Section 7 of the NLRA “protects the rights of employees to wear and distribute items such as buttons, pins, stickers, t-shirts, flyers, or other items displaying a message relating to terms and conditions of employment, unionization, and other protected matters.” In a 3-1 decision, the NLRB determined that Morales’ refusal to remove BLM from his apron was protected, concerted activity under Section 7. Morales, and at least two other employees, displayed BLM lettering on their aprons at the same time they were raising concerns about racist behaviors in the workplace. Thus, even though Morales had not had any specific discussion with his fellow employees about the BLM insignia, the NLRB deemed it to be a “logical outgrowth” of their repeated complaints, finding no need to show any specific, concerted endorsement of the message. The NLRB also found that Morales’ BLM message was for the purpose of mutual aid and protection, including against the racist misconduct of a fellow employee, and Home Depot did not establish any special circumstances justifying interference with Morales’ right to display the BLM insignia.
The Significance for Your Business
Contrary to common belief, Section 7 of the NLRA applies to all employers, not just those with unionized workforces, so every employee should pay attention to the NLRB’s decision. While many, perhaps rightly, believe this decision will lead the way to additional charges related to political activity in the workplace, it is difficult to distill hard and fast guidance from the ruling because the facts and circumstances are so unique. Despite Home Depot’s apparent ban on political messaging, the policy was rarely, if ever, enforced. Numerous employees displayed flags, Pride pins, and other insignia, including BLM, on their aprons without any interference or discipline. Moreover, the crackdown against Morales’ BLM message occurred in the wake of the George Floyd tragedy and after he and others had repeatedly raised direct concerns about racism in the workplace. Despite having BLM on his apron for months, nothing was said or done about it until Morales was viewed as stepping on management’s toes.
If anything, the NLRB’s decision reveals that even facially neutral policies can run afoul of the NLRA under the right circumstances. And employers do themselves no favors when their enforcement has been inconsistent. While it is difficult to know how the NLRB would have ruled if Home Depot had consistently applied its policy, employers should still assess whether the employee has engaged in protected, concerted activity when making enforcement decisions and should evaluate whether there is any conceivable connection between the message and the workplace.
Moving forward, employers should re-evaluate their written policies. If an employer wants to regulate employee dress, it should ensure its policy prohibits all political and social issue messaging that is unrelated to the terms and conditions of employment. In addition, employers should apply their policies consistently, and special care and caution should be taken anytime an employee has raised concerns about workplace issues, including racism, harassment, safety, scheduling, pay, and management.
