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When is Wearing “BLM” Insignia “Concerted Activity”?

by Jennifer Shaw and Melissa Whitehead | | February 26, 2023

Last week, the National Labor Relations Board ruled that Home Depot violated an employee’s rights under Section 7 of the National Labor Relations Act by requiring them to remove the “BLM” (the acronym for “Black Lives Matter”) insignia from their orange work apron.

Section 7 protects the right of employees to engage in “concerted activities” for the purpose of “mutual aid or protection.” This protection applies whether or not employees are represented by a union.

So, how does one employee’s BLM insignia on a work apron constitute “concerted activity?”

The NLRB explained that an activity may be “concerted” and for “mutual aid or protection” when an employee engages in the activity for the benefit of others. In reaching its decision, the Board reviewed the circumstances leading to the employee’s refusal to remove the BLM insignia, and found that the activity was “concerted” because it was a “logical outgrowth” of prior concerted employee protests regarding alleged racial discrimination in their workplace. The employee (and others) had previously made several complaints about racial discrimination in their store, which largely went unaddressed by management. The employee at issue explained that they believed displaying the insignia on their apron was the only way to get the managers to pay attention to the complaints. Accordingly, the employee’s conduct was for the “mutual aid or protection” of their coworkers to improve working conditions.

The NLRB made clear that an employer’s interference with “concerted” activity by barring the display of such insignia is presumed to be unlawful. The employer can rebut the presumption with evidence that its interference was justified by “special circumstances,” such as in situations where the display of the insignia might “jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.” Even then, though, the rule must be narrowly tailored to those special circumstances. The NLRB did not find that such circumstances existed in this case.

The NLRB also rejected Home Depot’s argument that by sending the employee home when they refused to remove the insignia, it simply enforced its facially neutral dress code and apron policy. The policy stated that the employee’s work apron “is not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” In light of the history of racial discrimination complaints in this workplace, the NLRB found that Home Depot’s application of its facially neutral dress code and apron policy was unlawful because it restricted NLRA-protected activity. In addition, Home Depot employees were encouraged to personalize their aprons, and permitted to wear insignia including LGBTQ Pride symbols, Pan-African flag colors, holiday symbols, and sports team slogans, so the policy was in fact not neutrally applied.

So, what should you take away from this decision? First, employers must evaluate all employee complaints, and respond appropriately. The NRLB relied on Home Depot’s alleged failure to properly respond to the race discrimination complaints in the store to reach the conclusion that the employee had engaged in “concerted activity.” Also, any appearance policies must be neutral both on their face and in application. Finally, the Board construes NLRA protections broadly, so employers should exercise caution when disciplining employees for speech-related activity.

Read the decision here and the NLRB press release here.

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