Should workers violating a company dress code policy be protected under the National Labor Relations Act (NLRA) if they are wearing or displaying political slogans on their uniforms protesting for an issue unrelated to their work?

In January we wrote on an NLRB case where a National Labor Relations Administrative law judge held in favor of Whole Foods dress code when it was challenged about disciplining workers wearing Black Lives Matter (BLM) on their uniforms – NLRB Judge Holds in Favor of Employer’s Dress Code (2/16/24). The company had a rule against that, that it enforced equally. The Judge in that case ruled that because the protest was unrelated to workplace matters it was not protected under the NLRA.

A little more than one month later, a three judge panel of the NLRB overruled another NLRB Administrative Law Judge (Judge Paul Bogas) and presumably that Whole Foods judge that saw the issue the same, to hold that Home Depot violated the NLRA when it told a worker that they could not display the BLM message on their work apron.

Why the different decision? The three judge NRLB panel focused on the fact that this time the worker wore the BLM message in support of other employees that had previously protested the same way and were disciplined so this protest was based upon a “logical outgrowth” of earlier group protests of racially discriminatory issues. According to Law 360, “The majority of NLRB judges particularly noted that other workers also displayed the BLM message and that managers asked Morales (the current complainant) to first remove the BLM marking after Morales raised concerns workers had about discrimination.”

The fact Morales continued to display the BLM marking on his uniform proved to the NLRB panel that he was engaging in protected concerted activity in support with the other workers and their protest.

As stated in his dissent, NLRB member Marvin Kaplan opined that the NLRB continues its expansion of the NLRA outside of the boundaries of the law.

So where does this leave employers who want to avoid violations of federal labor law and also want to maintain order and decorum in their workplace?  Possibly one further step back.

Last month’s NLRB judges’ decision supporting Whole Foods and their consistent enforcement of their dress code rule allowed for the employers to maintain a consistent store image without the potential fallout from employees’ outside political activity and messaging worn in the store and in view of its customers. Now the employer is exposed to labor law liability if it tries to maintain a workplace free from a worker’s political statements and activism even through consistent application of its dress code rules. Why? Because the hyper politically driven NLRB now says so.

Employers can either now fall in line and allow workers to bring in any political messages they may want to promote on their uniforms or perhaps wait and see if the next Washington Administration drives these rules away.

Not a good legal foundation given the NLRB is a government agency and not a legislative body – but that is another issue.

So, what does this mean for employers that have dress code policies that seek to have a consistent message and brand displayed without any outside messaging? First, messaging around collective bargaining and organizing will usually stand unless the employer has a really good business reason for it. Secondly, your dress code policy may not hold up against one or more employees besmirching it with markings or other messaging that have some kind of labor or political missive behind it. If the worker can tie the message to a political idea or point that others in the store may support, forget enforcing your dress code, the NLRB may find this enforcement against the law and this action protected.

The NLRB continues its movement against employers’ business policies and rules, and this new decision changes the law as it was previously enforced when the employer could require employees to keep their customer facing political views outside of the workplace.

Employers are advised to educate themselves on the NLRA and how its enforcement agency is revising long standing law to support organized labor and challenge employer rights to manage its workplace.

Source: Law 360. NLRB Says Home Depot Unlawfully Restricted BLM Protest (2/21/2024)