Wearing “Black Lives Matter” Symbol on Company Uniform May be Protected Speech in the Workplace

Headshot - Peg O'Brien
Margaret "Peg" O'Brien
Director, Litigation Department and Chair, Employment Law Group
Published: New Hampshire Bar News
April 17, 2024

On February 21, 2024, the National Labor Relations Board (“NLRB”) ruled in Home Depot USA, Inc. v. Morales, that Home Depot violated the National Labor Relations Act (“NLRA”) when it required an employee to remove a plainly visible Black Lives Matter (“BLM”) symbol from the orange apron the employee wore in the workplace when greeting customers.  In issuing its decision, the NLRB noted that the action of the employee, in handwriting BLM on the company’s apron, was a “logical outgrowth or continuation of prior or ongoing protected activity” occurring in the workplace under the NLRA.  The protections of the NLRA apply to both union and non-union workplaces, even though many employers incorrectly assume that the NLRA is solely a union-workplace law.

Brief Overview of the Facts

From August 2020 through February 2021, Mr. Morales and other Home Depot employees discussed that a co-worker had been engaging in racially discriminatory conduct in the workplace.  The co-worker was reprimanded but not terminated. Thereafter, the employees observed that various Black History month displays in the workplace were being repeatedly vandalized. Mr. Morales requested a store-wide discussion on racism, and as a result, Mr. Morales was invited to a meeting with management.  During this meeting, a manager noted that Mr. Morales had written the initials “BLM” on the store’s apron.  The store management directed Mr. Morales to remove the insignia, but Mr. Morales refused noting that the display was in support of employees of color, given the ongoing occurrences of racial discrimination in the store.  The store would not yield on its position, noting its dress code policy that prohibits “displaying [on an apron] causes or political messages unrelated to workplace matters.”  The store instructed Mr. Morales not to return to the retail floor until the BLM symbol had been removed from the apron.  Mr. Morales refused to follow management’s directive and resigned from employment.

Thereafter, Mr. Morales filed a complaint with the NLRB claiming that the company had unlawfully interfered with Mr. Morales’ right under Section 7 of the NLRA to engage in “protected concerted activity” in the workplace.

Protected Concerted Activity and the NLRB’s Finding

 Section 7 of the NLRA protects employees’ right to engage in concerted (or group) activities for the purpose of “mutual aid or protection” in the workplace. For employee activity to be protected under this Section, there must be present (1) conduct by individual employees seeking to initiate or prepare other employees for group action, or alternatively, conduct by a single employee bringing “‘truly group complaints’ to the attention of management;” and (2) the employee(s) must be seeking to improve the terms and conditions of employment or “otherwise improving their lot as employees.”  The NLRB has previously held that, in general, to be concerted, activity must be engaged in “with or on the authority of other employees, and not solely by and on behalf of the employee himself.”

In this case, the NLRB found that Mr. Morales’ refusal to remove the BLM symbol was “protected concerted activity” under the NLRA because the display of the symbol related to prior employee protests of racial discrimination occurring within the store where Mr. Morales worked.  Therefore, the display of the BLM symbol was a “logical outgrowth” of prior concerted activity by employees.

In addition, the NLRB found that the store had applied its “neutral” dress code policy in a way that interfered with Mr. Morales’ Section 7 rights by requiring Mr. Morales to remove the symbol.  The NLRB rejected Home Depot’s argument that it simply sought to enforce its policy of displaying “controversial” messages by employees, out of concern that customers might take offense and potentially believe the statements were a corporate endorsement of the message.  In ruling against Home Depot’s position, the NLRB noted that the retailer had allowed employees to display similar examples of political speech on their aprons (e.g., LGBTQ Pride symbols) and that prior NLRB rulings rejected the right of employers to interfere with employee’s protected rights due to customer concerns.

As a result of its findings, the NLRB ordered Home Depot to, among other things, stop its unfair labor practices, offer Mr. Morales full reinstatement, and pay Mr. Morales for lost back wages.

Context Matters

This Home Depot decision does not mean that employees can wear political speech in a private workplace without any limits. Rather, the NLRB’s ruling was expressly grounded in the specific finding that Morales’ speech was a “logical outgrowth” of prior protests occurring in the store regarding racial workplace discrimination.  Absent this backdrop, Morales’ conduct may not have been protected under the NLRA.  Therefore, Home Depot would have been within its rights to enforce its dress code.

During these next few months of intense political activity and debate, employers should carefully consider the potential application of the NLRA to any situation involving discipline for speech-related activity. Employers remain free to prohibit offensive or obscene communications in the workplace, and as noted by the NLRB in a footnote in the Home Depot decision, communications involving “product disparagement or profane messages critical of the employer.”  However, restrictions on political speech should be carefully considered in light of the facts at hand and an employer’s particular circumstances and business reasons for needing to restrict the speech.