All employers, even non-union, take note: The National Labor Relations Board (NLRB) recently issued a new ruling regarding employees’ rights to engage in protected concerted activity. In Home Depot USA, Inc., the NLRB determined that employees who wore Black Lives Matter insignia on their work uniforms were exercising protected rights, and their non-union employer failed to prove special circumstances to prohibit this expression.
Section 7 of the National Labor Relations Act (NLRA) safeguards employees’ rights to engage in protected concerted activities, irrespective of union membership. These activities include banding together to improve working conditions. However, if an employer can show that its interference is justified by special circumstances – e.g., safety concerns, protecting public image, preventing machinery or property damage, or exacerbation of employee dissension – it can rebut the presumption that it has violated the law.
In this case, several employees of color long complained of racial injustice in their workplace, from their supervisor’s alleged discrimination to the repeated destruction of their Black History Month display in the break room. Despite numerous complaints, management’s response was inadequate. Accordingly, the aggrieved employees met to collectively discuss the issues, and one employee represented the group’s concerns to management.
Although the employer encouraged employees to personalize their uniform by adding written messages and images, it only objected to the Black Lives Matter insignia after a meeting where concerns about the response to discrimination were voiced. Management likened the insignia to a swastika and demanded its removal or alteration to “All Lives Matter.” The employee refused, citing the ongoing protests against workplace racial injustice, and subsequently resigned.
The NLRB found that by refusing to remove the Black Lives Matter markings to protest the continued racial injustice in the workplace, the employee engaged in protected concerted activity for mutual aid and protection. The employer failed to show any special circumstances to justify its refusal to allow the Black Lives Matter insignia.
What can employers do to prevent a similar situation in their workplaces? First and foremost, address any workplace complaints promptly and appropriately to avoid a need for employees to engage in protected concerted activity. The employer in this case admittedly failed in that regard.
Second, if employers have a uniform policy, enforce it strictly and do not allow personalization as the employer did here. If employers are going to argue the protected concerted activity harms their image, they must establish a carefully cultivated public image that is so consistently preserved that the nonconforming symbol, button, or other insignia would jeopardize the image — a high burden to meet.
Finally, be aware of the legal parameters of protected concerted activity. Reach out to Employers Council when in doubt to fully understand the legal risk and avoid any missteps.
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