We recently rounded up a wardrobe full of rulings on workplace political messaging as displayed on uniforms and apparel. That article turned up a legal grab bag that left employers with no clear roadmap. This article will discuss how the messaging continues to shift, possibly against employers. That would be the main takeaway to how Home Depot has been treated by the National Labor Relations Board (NLRB) this month on this challenging subject. Right now, the rules are a mixed bag for employers.

Before we discuss the latest news, let’s recap the key 2023 legal sagas:

• Kroger did not find relief from an administrative law judge, who agreed with the NLRB’s claim that the company illegally banned (paywall) workers from wearing BLM-themed masks and buttons, even though this apparel was marked with the UFCW logo.

• Tesla received welcome news from a federal appeals court, which reversed the NLRB’s finding that the company’s workplace ban on UAW shirts was illegal. The auto manufacturer had argued that Tesla-branded shirts were required for safety reasons, and the auto manufacturer also apparently compromised by allowing workers to display union-branded stickers.

• Whole Foods won a three-year legal battle when an administrative judge reversed the NLRB’s declaration that the company’s ban of BLM apparel – part of a moratorium on all political messaging in the workplace – was illegal. The judge further ruled that this apparel wasn’t a “protected activity” under the NLRA because it wasn’t substantially related to carrying out workplace duties. Whole Foods likely also tipped the issue in their favor by extending the messaging ban to all politically labeled apparel rather than singling out BLM as the sole focus of the messaging discussion.

Next up? This month’s Home Depot ruling from the NLRB declared that a worker's protest was a “protected activity” and that the company must reinstate a worker after firing him for refusing to remove a self-drawn BLM insignia from his apron. The board reasoned that the insignia's display was the “logical outgrowth” of workers previously protesting racial discrimination by store management, which the board determined was related to working conditions. The board further found that the company failed to establish the apparel ban as “necessary to maintain production or discipline.” 

Notably, the NLRB also rejected Home Depot’s claim that the BLM insignia would upset some customers, which arrives as a warning to retailers. Yet the board did not take their ruling as far as General Counsel Jennifer Abruzzo wanted – she sought a blanket statement for all workplace discrimination protests to be “inherently concerted” regardless of previous actions or concerns from other workers. Still, it’s safe to assume that Abruzzo could always reframe that request for another attempt in a future case.

Also, the board’s ruling likely invites more activism (reg. required) regarding apparel in the workplace. Home Depot could roll the dice in a federal appeals court, yet that remains to be seen. 

What is crystal clear, however, is that the debate on workplace political messaging is not over yet. Still, if companies can make compromises and ensure that they are not discriminating against any cause (as seen with the above Tesla and Whole Foods examples), those gestures could go miles toward resolving the issue in their favor.