The National Labor Relations Board recently ruled that Home Depot USA, Inc. violated federal labor law when it prohibited an employee from wearing a work apron containing a handwritten reference to “Black Lives Matter.” This decision raises a number of important issues involving the rights of employees to display political and social activism at work. All private sector employers should take note of this case and its potential impact on workplace policies and practices.

The Home Depot Case

The dispute arose after an employee hand-wrote the initials “BLM” on his uniform to signal support for co-workers he believed were treated unfairly. Importantly, this employee and others had previously raised concerns about alleged employee mistreatment with management. The employer informed this employee that the “BLM” writing on his uniform violated the company’s dress code, which barred employees from wearing political messages unrelated to the workplace. The employee refused to remove the “BLM” reference, and ultimately resigned his employment.

In a 3-1 decision, the NLRB reasoned the employee had the right under the National Labor Rights Act (“NLRA”) to wear the “BLM” insignia as a form of protected, concerted activity because the “BLM” reference was a “logical outgrowth” of prior protests about racial discrimination in the workplace and an attempt to bring attention to those complaints. The Board found the employer violated the NLRA by conditioning the employee’s continued employment on removal of the BLM marking.

“It is well-established that workers have the right to join together to improve their working conditions — including by protesting racial discrimination in the workplace,” said Chairman Lauren McFerran. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”

The employer argued without success that it was lawfully attempting to limit the display of “controversial” messages by employees, fearing they would concern customers and possibly be mistaken for a corporate endorsement of the broader movement. The NLRB rejected this argument, noting that NLRB precedent has long refused to yield the exercise of an employees' protected rights to customer concerns.

Similar Cases, Different Rulings

In May of 2020, Whole Foods told employees that wearing Black Lives Matter apparel violated the company’s dress code and prohibited the practice. An administrative law judge of the NLRB ruled in that case that wearing BLM apparel wasn't legally protected activity because it wasn't directly connected to an effort to improve employees' working conditions. The judge noted: "There is simply no evidence that there were any employee concerns, let alone complaints or grievances about ‘racial inequality,’ or any manner of racially-based discrimination by Whole Foods Market prior to, or at the time they started donning BLM messaging . . . [t]he evidence persuades me that the employer was merely trying to avoid controversy and conflict at its stores, which it believed BLM messaging would invite."

In the Home Depot case, on the other hand, the NLRB seemingly found a sufficient nexus between the employees’ conduct (writing “BLM” on his uniform) and terms and conditions of employment impacting the employee and his coworkers. While the NLRB’s General Counsel argued that all protests of discrimination in the workplace are “inherently concerted” activity, meaning that such conduct is protected activity regardless of whether a “nexus” to employment terms and conditions exists, the NLRB did not decide that issue and instead focused on its finding that the “BLM” reference was an outgrowth of the prior concerted activity by store employees to oppose alleged discriminatory treatment.

Takeaways from the NLRB’s Decision

The Home Depot decision opens the door to additional cases of this nature being prosecuted by the NLRB’s General Counsel, and the decision highlights why a case-specific assessment is necessary when determining whether an employee’s social or political activism at work amounts to protected conduct. Employers in the private sector should take this opportunity to review their policies governing dress code and appearance to ensure compliance with the NLRA. Moreover, each situation that calls for possible enforcement of these policies should be carefully analyzed to ensure consistent application and to evaluate potential consequences that employer actions (such as discipline or prohibition of certain messages) may have under the NLRA.