NLRB Adds Confusion to Social Protests in the Workplace

The National Labor Relations Board ruled that The Home Depot unlawfully dismissed a worker for having a BLM slogan on a uniform, but stopped short of declaring that political or social justice protests in the workplace are protected by federal labor law in general. 

Why it matters: The Board continues to broaden the scope of what employees can do in the workplace while being protected from employer discipline under federal labor law. 

The bottom line: Rather than providing clarification, the ruling further muddies the waters on the extent to which social or political protests in the workplace are protected from employer discipline. 

Background: Under federal labor law, employees are protected from employer discipline for engaging in activities with other employees to protest terms and conditions of their employment, known as “protected concerted activity.” 

• Whether general political and social protests are protected under the NLRA has long been a contentious issue. 
  
  
• In general, there must be some sort of connection between the action (or the issue being protested) and the employees’ workplace. 
  
  
• The current Board has taken an extremely broad view on the scope of protected activity and has indicated that some political and social protests are likely protected.
  
  
• NLRB’s General Counsel wants the Board to go even further and declare that political and social protests, even if there is only a loose connection to the workplace, are generally protected. 

The case: A Home Depot employee displayed “BLM” on his work uniform in violation of the retailer’s dress code policy limiting employees to wearing only store-issued buttons or pins on their uniforms. The events of this case took place within a few months of George Floyd’s murder, and there were allegations that a fellow worker at the specific workplace in question was engaging in racially discriminatory behavior. Management had several discussions with the employee regarding his allegations of discrimination in the workplace and on potential alternative methods of protest that did not include displaying anything on the company uniform. Eventually, the employee was forced to resign for refusing to remove “BLM” from his uniform. 

After the employee filed a complaint with the NLRB, an administrative law judge (ALJ) found Home Depot’s enforcement of its policy legal, stating that the employee’s protest was not protected, because it did not have an objective that was shared by other employees and clearly connected to workplace issues. 

The Board overturned the ALJ and found the employee’s conduct was protected as a “logical outgrowth” of similar protests undertaken by fellow coworkers regarding allegations of discrimination at the workplace. In the Board’s view, this made the action “concerted” and sufficiently connected to terms and conditions of employment. 

So, what is protected? The Board avoided the question of whether general social or political protests are inherently protected under the Act, as the General Counsel urged them to do, and instead took great pains to bend the specific facts of the case to reach a similar result. If there had been no allegations of discrimination in the workplace (and therefore the “BLM” display was clearly just a general protest), would the Board have reached the same result? The Board’s refusal to answer that question leaves employers in the dark. 

Takeaways for employers:

• Although there has been no change in precedent or the law, this case shows that the Board will search to find any sort of connection between employee protests and workplace conditions to justify a finding of employer misconduct.
  
  
• Employers should be cautious when disciplining employees for social or political protests in the workplace. 
  
  
• Maintaining or enforcing uniform rules that prohibit social or political displays may run afoul of the Board. 
  
  
• Thus far, the Board has been hesitant to fully adopt the General Counsel’s more radical theories. In practice, however, its more “moderate” alternatives may have the same effect, as was the case here.