BLM on Uniforms May Be Protected Under NLRA
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APPLIES TO Employers subject to the NLRA |
EFFECTIVE February 21, 2024 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion
On February 21, 2024, the National Labor Relations Board (NLRB) issued an opinion finding that an employee who wore a hand-drawn acronym for Black Lives Matter (BLM) on his uniform was engaging in protected concerted activity and that the employer directing the employee to remove the acronym was violating the National Labor Relations Act (NLRA).
In this case, an employee was employed by a large retailer from approximately August of 2020 to February of 2021. Throughout his employment, the employee was allegedly targeted by a fellow coworker and subjected to racially discriminatory conduct. The employee discussed this mistreatment with other employees on numerous occasions and complained to management several times. During this time, the employee, along with several other coworkers, had begun to display the acronym “BLM” in handwriting on the front of their uniforms.
The employees were ultimately directed by management to remove the “BLM” initials from their work uniforms because it was contrary to the company’s dress code. The company reasoned that the work uniform was “not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.” Despite this rationale, the company had previously allowed other insignia or decorations on employee uniforms, including LGBTQ Pride symbols, the Pan-African flag colors, assorted holiday symbols, and professional or college sports team’s logos or slogans. The employee refused to remove the BLM initials and ultimately resigned his employment. He later filed an unfair labor practice charge with the NLRB.
In deciding this case, the NLRB determined that wearing the BLM initials on their uniforms constituted protected concerted activity by the employees because it was a “logical growth” from the employees’ prior complaints about workplace discrimination and mistreatment. The employer argued that it was simply enforcing a facially neutral uniform policy; however, the NLRB rejected this argument based on the employer’s acquiescence to other decorations on employee uniforms under different circumstances.
Of note, the act of wearing BLM initials or other supportive paraphernalia is not automatically protected activity. The key factor in this decision was the fact that the employees displaying the BLM initials had previously complained to management about work-related conditions and discussed these concerns with each other. In reaching its decision, the NLRB’s decision focused on the connection between the prior complaints and the BLM initials (i.e., the “logical growth”).
Action Items
- Review policies and procedures for receiving and responding to employee complaints, including complaints of workplace discrimination and/or harassment.
- Have appropriate personnel trained on how to handle employee complaints.
- Review dress code policy for neutrality and for compliance with Section 7 of the NLRA.
- Review workplace policies involving political and social messaging and displays in the workplace for compliance with Section 7 of the NLRA.
- Consult with legal counsel prior to taking adverse action against employees engaged in speech-related activities.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase