Most employers have dress code requirements and prohibit employees from wearing certain messages and symbols on their work attire. At Home Depot, its dress code states that the orange apron “is not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” Home Depot employees are prohibited from using the apron for “displaying causes or political messages unrelated to workplace matters.” After George Floyd, a Minneapolis area employee put BLM messaging on his apron, in violation of policy. Despite the manager trying to convince the employee to remove the message, he was terminated after he refused to remove it. He complained to the National Labor Relations Board (NLRB) and the agency sued Home Depot and claimed that the retailer violated federal labor law by preventing staff from displaying the message “Black Lives Matter” on their aprons, as well as by threatening and punishing employees to discourage collective action.
On June 10, 2022, an Administrative Law Judge last week ruled for Home Depot because he concluded that the BLM messaging lacked any objective and direct relationship to terms and conditions of employment, so it was not legally protected by federal law (NLRA). He concluded that the message was originally used to address the unjustified killings of Black individuals by law enforcement and vigilantes. To the extent that BLM is used beyond that, it operates as a political message for societal concerns and only relates to the workplace because workplaces are in society. The NLRB issued an unfair labor practice complaint against Home Depot for enforcing its dress code policy and requiring the employee to remove the BLM message. However, the evidence showed that BLM messaging neither originated as, nor was shown to be reasonably perceived as, an effort to address the working conditions of employees. It may have profound societal importance, but it was not directly relevant to the terms and conditions of Home Depot employees, as employees.
Under the Biden Administration, the new NLRB General Counsel has announced an intent to expand the concept of “concerted protected activity” beyond traditional limits, by including activity in support of political and social justice issues, such as BLM, $15 minimum wage, undocumented workers etc… The NLRB has also taken legal action against Whole Foods, which also prohibits employees from wearing face coverings with Black Lives Matter imprinted on them.