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Experts explain implications of employee speech ruling

The National Labor Relations Board last month expanded protection of employee speech to include writing “Black Lives Matter” on a work apron under certain circumstances. Minnesota employment law authorities David Larson, a Mitchell Hamline School of Law professor, and Michael Pfau, an attorney at Bassford Remele, explain what this ruling means and what its implications are.

The 3-1 ruling on Feb. 21 arose out of an incident involving a former Home Depot employee, Antonio Morales. Morales worked in the New Brighton store and had written “BLM” (Black Lives Matter) on their apron. The Black Lives Matter movement, which arose in response to the acquittal of Trayvon Martin’s killer, and reached its apex after the murder of George Floyd, has been criticized as being anti-white or endorsing lawlessness.

Morales became increasingly concerned about alleged racially discriminatory events that transpired at the store, including repeated vandalism of a Black History Month display. After attempts to have a manager host a “wider discussion,” Morales wrote “BLM” on their apron. (Morales uses they/them pronouns.) A manger informed Morales that the BLM writing violated the store’s employee dress code. Morales was told that they needed to remove the initials from the apron before returning to work. After refusing to remove the marking, the employee resigned.

Under Section 7 the National Labor Relations Act, employees have the legal right to engage in “concerted activities” for the purpose of “mutual aid or protection.” This applies to employees who are or who are not represented by a union.

The NLRB maintained that the employee’s refusal to remove the BLM marking was “concerted” activity. It concluded that writing BLM was a “logical outgrowth” of prior concerted employee protests about racial discrimination. The board concluded that this was an attempt to bring Home Depot’s attention to the employee’s complaints. Additionally, the board stated that writing “BLM” was for “mutual aid or protection” since the earlier protests about racial discrimination involved working conditions.

“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,” Chairman Lauren McFerran stated. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”

While Morales was permitted to write “BLM” in this situation, it does not follow that an employee can always write “BLM” on their uniform.

“Employers are still entitled to establish and enforce dress codes,” Pfau stated. “The difference in the Home Depot case was the unique facts and circumstances which established that the BLM markings were tied to earlier protests of racial discrimination related to their working conditions.”

Pfau explained that if an employee wanted to put political markings on their apron that were not tied to earlier protests of working conditions, “the employer would likely be well within its right to enforce its dress code.”

“Context clearly matters and in this case the employees’ additional actions were pivotal,” agreed Larson. “Based on this decision, it does not appear that employees will always be permitted to write BLM on their aprons or other employer-issued clothing.”

Nor does the decision mean that employees can wear whatever symbols they choose at work.

“This decision does not allow employees to wear whatever symbols they choose,” Larson said. “The symbol must have a nexus, or be a “logical outgrowth,” of a concerted, protected activity. That being said, the logical outgrowth analytical approach will probably increase the types of symbols employees will be allowed to wear.”

Pfau said the decision has widespread implications. “Employees have the right 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,” Pfau said. “An example similar to the Home Depot case would be employees wearing ‘#MeToo’ on their uniforms after complaints of sexual harassment have been ignored by an employer. The activity could be considered ‘concerted’ if multiple employees wear the markings and the activity could be considered for ‘mutual aid or protection’ because it relates to the earlier protests of sexual harassment. The key is to understand whether political messaging relates to workplace conditions.”

This decision has caused employers to look at their policies.

“Employers must always be attentive when it comes to clothing or uniform exceptions,” Larson said. “If employees are permitted to share or publicize any personal interests or concerns by wearing symbols or insignia, that certainly that will provide employees with a much stronger argument that they should be permitted to wear the symbols they desire.”

“This would be a good time to review current policies to regarding any purported conflicts between dress codes and protected concerted activity and to apply policies consistently,” Pfau instructed. “Before simply trying to enforce the dress code, understand the underlying reason the employee may have applied the mark to evaluate whether there is any conceivable connection between the message and workplace conditions. Before escalating the situation or terminating an employee for refusing to remove a marking, for example, seek advice of counsel.”

Home Depot now must now offer Morales reinstatement and provide back pay to them, as well as compensate Morales for any adverse tax consequences.

Dissenting NLRB member Marvin Kaplan asserted that there was not a connection between writing “BLM” on the apron and the store’s working conditions. Rather, Kaplan insisted that the “BLM” display was in response to George Floyd’s murder rather than alleged racial discrimination in the workplace.

“Black Lives Matter is not widely known for advocating for racial justice in the workplace,” wrote Kaplan.

Home Depot agreed. “I can tell you we disagree with the NLRB’s decision. The Home Depot is fully committed to diversity and respect for all people. We don’t tolerate any kind of workplace harassment or discrimination,” said Terrance Roper, corporate communications manager, in an email.

“This ruling highlights the delicate nature of protected employee activities,” Pfau declared. “It’s easy to misconstrue subtle activities, such as wearing hand-drawn letters ‘BLM’ on a work apron, as a simple dress-code violation instead of legally protected employee activity. While the facts will ultimately determine the outcome of future similar cases, this ruling will likely be used as precedent. If Home Depot appeals, the circuit court’s order could very well lay the groundwork for sweeping new precedent.”