On February 21, 2024, the National Labor Relations Board (NLRB) issued a decision that an employer violated federal law when it directed an employee to remove the hand-drawn acronym for Black Lives Matter — “BLM” — from their work apron to comply with the company’s dress code. Based on the particular facts of this case, the NLRB said wearing BLM on their uniform was protected concerted activity under the National Labor Relations Act (NLRA).
What Happened in this Case?
From August 2020 to February 2021, Antonio Morales worked as a sales specialist for a large retailer. From the beginning of employment and throughout, a fellow coworker exhibited racially discriminatory conduct towards Morales, other coworkers and customers. Morales and the other employees discussed this mistreatment among themselves on numerous occasions, and complained to management about the employee’s discriminatory conduct several times.
Morales eventually sent an email to a group of employees and management calling for a wider discussion about workplace discrimination. After, Morales met with management, who, in addition to discussing the email, told Morales that employees could no longer wear the initials BLM on their work apron because it was contrary to the company’s dress code, which stated that the uniform was “not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.”
At that time, Morales and several other customer-facing employees had been wearing BLM on their uniforms for several months without issue. The employer also encouraged and allowed other decorations on employee uniforms, including LGBTQ Pride symbols, the Pan-African flag colors, holiday symbols, and insignia and slogans of professional or college sports teams.
Morales refused to remove the BLM insignia, resigned his employment and, ultimately, filed a charge with the NLRB.
The NLRB’s Decision
The NLRA — which applies to most employers, even if not unionized — generally protects the rights of employees to engage in “protected concerted activity,” which is where two or more employees take action relating to the terms and conditions of employment for their mutual aid or protection. This can include discussions with coworkers or management about discrimination in the workplace, compensation, workplace safety, union matters and other topics.
In this instance, the NLRB found that Morales wearing and refusing to remove BLM from his uniform was “protected concerted activity” under the NLRA because it was a “logical outgrowth” of Morales’ (and coworkers’) prior complaints about workplace discrimination and their attempts to address this conduct.
The NLRB cited Morales’ meeting with management about workplace discrimination where he refused the remove the initials. In the meeting, he asserted that wearing BLM on their uniform was the “best way” to “show support for people of color or [B]lack associates,” i.e., coworkers. According to the NLRB, Morales’ comments linked the BLM initials to prior concerted protests of racially discriminatory working conditions, thereby bringing it under the protection of the NLRA — even if the initials also represent a broader social movement unrelated to the workplace.
The NLRB’s decision doesn’t mean that wearing BLM is always a protected activity. Key to the decision is the connection between the prior complaints and the initials — which demonstrates the “logical outgrowth” concept.
Under the NLRA, employers can offer evidence that its interference with protected concerted activity — in this case prohibiting the display of BLM on an employee’s uniform — is justified by special circumstances. For example, it unreasonably interferes with the employer’s established public image, jeopardizes employee safety or exacerbates employee dissension. In this case, the employer argued for special circumstances, but the NLRB rejected the arguments.
The employer also argued that it was simply enforcing its facially neutral dress code policy by sending home employees that didn’t comply with the dress code. However, based on Morales’ complaints of workplace discrimination, the NLRB found that the employer’s application of its facially neutral dress code policy was unlawful because it was applied to restrict protected concerted activity — i.e., Morales wearing BLM on his work uniform. The NLRB additionally noted that the employer encouraged all sorts of other decorations on the uniform, demonstrating that the policy was not neutrally enforced.
What Can Employers Learn from This Case?
Ensure timely and adequate response to complaints of workplace discrimination and harassment. Morales and the other employees complained for months about workplace discrimination. The NLRB’s holding is firmly rooted in those complaints and the employer’s alleged failure to properly respond to them. Employers should take all complaints seriously, evaluate them and respond appropriately.
Review your dress code policy and apply it consistently. All policies must be neutral on their face and in application. In this case, one problem the employer had was that it allowed employers to personalize their uniforms, displaying a variety of messages. Indeed, many employees had BLM on their uniforms for months before the employer sought to use its dress code policy to prohibit Morales from displaying BLM on his uniform.
Carefully consider speech-related activity before discipline. As previously reported here and here, recent NLRB decisions are interpreting the NLRA broadly to find more activity and speech to be “protected concerted activity” under the law. This case appears to follow the trend, as the NLRB easily found wearing BLM to be a “logical outgrowth” of prior protected concerted activity. As such, when faced with these workplace issues, employers should carefully consider the context of employees’ political or social messaging or displays prior to discipline, including whether:
- The messaging relates to topics employees have the right to talk about (e.g., compensation, safety, other terms or conditions of employment);
- Other employees are using the same or similar messaging; and
- Previous discussions with or complaints from employees could potentially be logically connected to the political or social display.
Additionally, employers should consider how they have previously applied their policies to determine if they have been consistent.
Due to the NLRB’s recent shift in interpretating and applying the NLRA, employers should consider consulting with legal counsel to review their workplace policies as well as prior to issuing discipline in situations involving political and social messaging and displays.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
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