Dive Brief:
- The National Labor Relations Board held on Feb. 21 that Home Depot violated federal labor law when it discharged an employee for refusing to remove “BLM” — the acronym for “Black Lives Matter” — from their work apron, according to an agency news release.
- NLRB said the employee’s refusal to remove the BLM marking was covered by the National Labor Relations Act because it was tied to previous employee protests about racial discrimination in the workplace and employees’ working conditions. Home Depot in a statement said the company disagrees with the NLRB’s decision and doesn’t “tolerate any kind of workplace harassment or discrimination.”
- “It is well-established that workers have the right to join together to improve their working conditions — including by protesting racial discrimination in the workplace,” Chairman Lauren McFerran said in the release. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”
Dive Insight:
The NLRA gives both unionized and nonunionized employees the right to work together to improve their wages and working conditions.
In the Home Depot worker’s case, the employee had been wearing the BLM marker on their apron for months and raising issues of racial injustice in the workplace before management ordered them to remove it in February 2021, according to court documents. The Home Depot store involved is located miles away from where George Floyd was murdered.
Wearing the BLM marking “was a logical outgrowth of earlier group protests about racial discrimination in the workplace, which is protected,” Eric Meyer, an employment lawyer and founding partner at Pierson Ferdinand LLP, told HR Dive.
Tom Luetkemeyer, a partner in the labor and employment practice at Hinshaw & Culbertson LLP, said employers often mistakenly believe that the NLRA only applies to unionized workers.
Luetkemeyer said one takeaway from this case for employers is that dress codes need to be applied consistently. Home Depot allegedly had previously allowed workers to personalize their aprons with “LGBTQ Pride symbols, the Pan-African flag colors, [and] holiday symbols,” according to court documents.
“They had a neutral policy, but they didn't enforce it consistently,” Luetkemeyer said.
Home Depot managers allegedly told the employee they would have to let workers wear swastikas on their aprons if they were permitted to wear the BLM marking because the company’s dress code prohibited displaying political messages, per court documents.
“It’s a false equivalency,” Meyer said.
