Monday reflections on a recent NLRB decision. What are you thinking?
You know the scientist dork in the action movie, the one the government ignores? This employment lawyer helps proactive companies avoid the action sequence.
WARNING: This post may trigger some of you. I'm all for lively discussion in the comments. But before you read any further, let's all agree to keep the discourse civil, ok? All right, then. Last week, the National Labor Relations Board decided that a NON-union employer cannot require employees to remove "Black Lives Matter" (BLM) insignia from their work uniform when it is a "logical outgrowth" of earlier group protests about racial discrimination in their workplace. Most people associate BLM with the murder of George Floyd. And it just so happened that George Floyd died six and a half miles from the Respondent's store. At least one employee first wrote "BLM" on their work apron at about the same time as the perpetrator's trial and related protests. Other employees who were dealing with workplace bias wrote "BLM" on their aprons, too. They often commiserated and complained to management about the same coworker subjecting employees and customers to racially discriminatory behavior. To boot, a Black History Month display in the break room was vandalized twice. Although management responded, several employees found the response lacking. So, one of the employees emailed a store manager asking for a broader discussion with employees about the racial tensions at work. After the email, a manager commented on the BLM marking one worker wore on their apron -- even though that employee had worn it continuously for the prior five months. The manager (and later HR) said that the BLM initials were contrary to the dress code and apron policy's ban on "displaying [on an apron] causes or political messages unrelated to workplace matters." Thus, an ultimatum followed: remove the BLM initials or don't come to work. However, the employee refused to remove "BLM" from their apron, explaining that the insignia referred expressly to workplace racial issues rather than the Floyd murder or any related social issue outside of the workplace. And the employee prevailed. Here's why. The National Labor Relations Act protects the legal right of employees to engage in "concerted activities" for "mutual aid or protection" — whether or not a union represents them -- here, prior employee protests about racial discrimination in their workplace. The employee's conduct was also "for mutual aid or protection" because the issue of racial discrimination involved employees' working conditions. The Respondent could not establish special circumstances that make the rule necessary to maintain production or discipline. So, employees can wear the BLM insignia. The Board stopped short of concluding that displaying BLM in the workplace, standing alone, would support a mutual aid or protection finding. However, there is a developing situation involving another large non-union employer that may be the platform for a broader ruling that would allow employees to display "protected insignia." So, stay tuned... #TheEmployerHandbook #employmentlaw #humanresources
