Board Rules Employee’s “Black Lives Matter” Action at Home Depot Was Protected

Today, the NLRB issued a decision in Home Depot USA, Inc., holding that an employer violated the National Labor Relations Act when it discharged an employee for refusing to remove the hand-drawn letters “BLM” — the acronym for “Black Lives Matter” — from their work apron. Several other employees at the same store also displayed “BLM” markings on their work aprons at about the same time.

The National Labor Relations Act protects the legal right of employees to engage in “concerted activities” for the purpose of “mutual aid or protection” — whether or not they are represented by a union. Applying existing precedent, the Board reasoned that the employee’s refusal to remove the BLM marking was “concerted” because it was a “logical outgrowth” of prior concerted employee protests about racial discrimination in their workplace and because it was an attempt to bring those group complaints to the attention of Home Depot managers. The employee’s conduct was also “for mutual aid or protection” because the issue of racial discrimination involved employees’ working conditions.

When an employer interferes with employees’ right to display protected insignia like the BLM marking in this case, that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that make the rule necessary to maintain production or discipline. The majority found that Home Depot failed to establish such special circumstances in this case. The Board accordingly found that Home Depot broke the law when it conditioned the employee’s continued employment on removal of the BLM marking.

“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,” said Chairman Lauren McFerran. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”

Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.