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On February 21, 2024, the National Labor Relations Board (NLRB or the Board) ruled that Home Depot violated Section 7 of the National Labor Relations Act (NLRA or the Act) when it effectively terminated an employee after the employee refused to remove hand-drawn Black Lives Matter (BLM) messaging from their Home Depot apron. In its <a href="https://www.law360.com/articles/1805297/attachments/0" target="_blank" rel="noreferrer noopener">decision</a>, the Board ordered Home Depot to reinstate the employee, among other remedies.

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This case involved a Home Depot employee, Antonio Morales (they/them), who wrote “BLM” on their work-issued – and well-recognized – orange apron that they were required to wear while working at the New Brighton, Minnesota, store. Morales was repeatedly informed that Home Depot’s dress code prohibited employees from promoting or displaying “religious beliefs, causes or political messages unrelated to workplace matters.” After Morales refused to stop wearing the apron or remove the mark, Home Depot conditioned Morales’s ability to return to work on removing the BLM mark. Instead of doing so, Morales submitted a letter of resignation, which the Board framed as a constructive discharge.

Unsurprisingly, the Board found Home Depot was unable to establish special circumstances necessitating its dress code rule and determined that Morales’s refusal to remove the hand-drawn BLM marking from their work apron qualified as protected concerted activity. Based on that determination, the Board held that Home Depot violated federal labor law by enforcing its dress code policy against Morales. Traditionally, concerted activity occurs where employees organize or come together to discuss shared concerns regarding the workplace. The Board, citing precedent, found that “an individual employee’s action is ‘concerted’ within the meaning of Section 7 of the Act if it is a ‘logical outgrowth’ of employees’ prior or ongoing protected concerted activity.”

Here, the Board found that the “logical outgrowth” of protected activity was established because (i) employees, including Morales, had complained about racially discriminatory conditions at Home Depot and the manner in which Home Depot addressed their concerns; (ii) Morales wore their BLM-marked apron while expressing their concerns; and (iii) Home Depot first began asking Morales to remove their BLM marking during meetings in which Morales voiced their concerns. The Board determined that under these circumstances, the employee’s insistence on continuing to wear the BLM marking while raising racially discriminatory concerns was “at a minimum, a logical outgrowth of the employees’ prior concerted activities.” The Board found that Morales’s explanation – that the BLM marking was the best way to show support for Black associates – “linked” the BLM marking to prior concerted activity regarding complaints of racially discriminatory working conditions.

Does this decision mean that all workplace civil rights-related protests are protected under the Act?

While this ruling is the latest in a long string of employee-friendly decisions, employers should note that the Board did not go as far as its general counsel, Jennifer Abruzzo, has urged. Abruzzo has publicly advocated for the NLRB to consider all protests of civil rights issues on the job to be “inherently concerted” (thus the continuation of the death by a thousand cuts to the “concerted” concept – see <a href="https://www.bakerlaw.com/insights/back-to-basics-employers-must-be-aware-that-protected-concerted-activity-applies-in-nonunion-workplaces-yes-even-in-wealth-management-firms/">here</a>). The Board declined to take up that issue and specifically expressed “no view as to whether, in a future appropriate case, we would find protests of workplace racial discrimination to be inherently concerted.”

Bottom line for employers

 Absent special circumstances, which is a high bar with this Board, employers should be aware that enforcing a facially neutral dress code that curtails the promotion or display of political or religious views or causes could potentially be a violation of the employee’s Section 7 rights. Employers should look before they leap when enforcing these policies, given the Board’s ever-expanding definition of behavior that qualifies as protected concerted activity, and given our current politically charged environment. Should you need to discuss this decision and its effect on your organization in greater detail, the BakerHostetler Labor and Employment Practice Group is available to assist.

Next Up in the NLRB’s Line of Fire: Protection for Employee Displays of Religious, Social, and Political Messaging