NLRB Prohibits Action Against Employee with ‘BLM’ Markings on Work Attire

Disputes involving employee free speech rights in the workplace are becoming an increasingly significant concern for employers. As demonstrated in a recent ruling of the National Labor Relations Board (“NLRB”), employers who try to interfere with an employee’s speech can run afoul of the National Labor Relations Act (“NLRA”) in certain circumstances.

Home Depot USA, Inc. and Antonio Morales Jr.

An employee of Home Depot, Antonio Morales, wrote “BLM” (for “Black Lives Matter”) on his work apron, which employees are required to wear while on duty. Morales was told to remove the BLM marking and not return to work until he did so because it violated Home Depot’s dress code and apron policy. Other employees also had BLM on their aprons and were told to remove them. Morales resigned rather than comply with the policy.

Morales subsequently filed a complaint with the NLRB alleging that Home Depot violated Section 7 of the NLRA by constructively discharging him for refusing to remove the BLM marking and prohibiting other employees from displaying it. Importantly, Morales and other employees had previously complained about discriminatory conduct against them at the store.

The NLRA protects an employee’s right to engage in “concerted activities” for the purpose of collective bargaining or “other mutual aid or protection.” While Morales acted individually, the NLRB found that wearing the BLM marking was “concerted” because it was an outgrowth of the prior complaints about discrimination and efforts to bring it to the attention of management. Morales’ actions were also for “mutual aid or protection” because the discrimination involved working conditions.

The NLRB noted that employees have the right to join together to protest discrimination in the workplace and can also act individually to support a group protest of a workplace issue. Thus, Morales was engaging in protected conduct under the NLRA. In order to avoid liability, Home Depot then had the burden to establish special circumstances that made enforcement of the apron policy necessary to maintain production or discipline, which it failed to do.

Free Speech Issues in the Workplace

The Home Depot case specifically addressed a violation of the NLRA. However, free speech issues in the workplace are arising under other circumstances and statutes. Discrimination laws prohibit both discriminatory treatment and harassment but discrimination may not always be obvious because of the nuances of language and the precise facts of the case. Yet, employers have to decide quickly how to respond to an employee’s speech and potentially face litigation if an aggrieved employee believes that the employer has acted unlawfully.

Employers are also increasingly facing criticism and sometimes litigation for how they handle political speech by employees. An employee who speaks outside of work on topics unrelated to their jobs can still cause problems for employers. If other employees, customers, and the general public learn of the employee’s views and find them objectionable, they may put pressure on employers to act. Most recently, this has arisen in the context of the Hamas-Israeli war, where employees are publicly sharing views that others find objectionable.

Takeaways for Employers

To minimize liability, employers need to have clearly written employment policies and procedures that address employee rights and obligations, including those that may impact free speech. Employers should also enforce their policies in a neutral manner such that they apply equally to workers regardless of any protected characteristics. An attorney should be consulted to ensure these policies are kept up-to-date and comply with all federal, state, and local laws. 

Please feel free to contact any of our attorneys if you have any questions about the NLRB case or free speech issues in your workplace or if you would like our assistance in developing employment policies and procedures.

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