NLRB Rules That Employee’s Black Lives Matter Message Was Protected

We are often asked about an employer’s responsibility when employees engage in social activism while at work. The National Labor Relations Board (NLRB) shed some light on this question in the last few weeks, ruling that the national home improvement chain Home Depot violated the National Labor Relations Act (the "Act") when it fired an employee who refused to remove the acronym for Black Lives Matter from their employer-issued apron.  

In Home Depot USA, Inc., issued on February 21, 2024, the NRLB explained that an employee's refusal to remove the hand-drawn letters "BLM" from their apron was a "logical outgrowth" of previous concerted activities by employees who had complained as a group to management and attempted to seek redress for racial discrimination in the workplace at the Minnesota Home Depot store where they were employed. These efforts were considered to be for "mutual aid or protection" under the Act because they related to the employees' working conditions. The connection between the BLM insignia and employees’ ongoing efforts to address a series of racially targeted incidents occurring at work show that employers need to be aware when social justice advocacy in the workplace might be protected activity under the NLRA.

Further guidance will likely be forthcoming as at least three additional decisions are pending before the Board. 

In addition, federal courts are also grappling with the scope of employment anti-discrimination protections under Title VII for employees who are disciplined for engaging in social advocacy at work. The 1st Circuit Court of Appeals recently heard arguments to revive a previously dismissed case involving former Whole Foods employees who alleged that the company violated both the NLRA and Title VII in discriminating and retaliating against them by firing them after they continued to display BLM messaging on their masks, which the employer stated was a dress code violation. 

Stay tuned for further developments from the Board and federal circuit courts.

The full decision in Home Depot USA, Inc. is available here: https://apps.nlrb.gov/link/document.aspx/09031d4583c6ebac