News & Commentary

February 22, 2024

Divya Nimmagadda

Divya Nimmagadda is a student at Harvard Law School.

In today’s labor news, NLRB orders Home Depot to reinstate employee fired for wearing BLM logo, and Senate headed to another vote on acting Secretary Su’s nomination. 

Antonio Morales was working as a sales specialist at the New Brighton, Minnesota location of Home Depot in 2021. During his time at Home Depot, Antonio and their coworkers were subject to discriminatory action by a coworker, and their efforts to raise awareness about Black history and culture during Black History Month were met with repeated vandalism. Morales and others persistently asked management to respond to these incidents by pursuing a private investigation and opening up a “store wide discussion” about the company’s values and policies. In the midst of these requests to management, Morales was called into the store manager’s office and told that the “BLM” initials on the orange uniform apron was against the dress code and company policies. After being told that they could not return to work if they continue to sport such an apron, Morales resigned. The Minneapolis regional office of the NLRB filed a complaint against Home Depot.

The administrative judge that heard this case determined that the worker’s action was not protected because it was not specifically tied to or being used to protest a workplace grievance. On Wednesday, the NLRB reversed this earlier judgement, holding that Section 7 of the NLRA guarantees the right of workers to take part in “concerted activities” for “mutual aid and protection.” Given the history of racially targeted incidents at the location, the Board characterized the worker’s refusal to remove the BLM initials as “concerted activity,” to protest against racial discrimination in the workplace. Therefore, Home Depot was held to have violated Section 8(a)(1) by using their dress code to make Morales’ employment contingent on removing the marked apron. The Board ordered Home Depot to reinstate Morales, provide backpay, and cease-and-desist from applying their dress code policy in a manner restricting NLRA protected activity. Home Depot has the option to appeal the Board’s ruling to a federal appeals court. It remains to be seen whether the holding of this case will be confined to its facts or held to create a new level of protection on employee concerted activity at work, especially given the number of other cases in front of the Board on this matter. Not too long ago, an administrative judge held that Whole Foods had not violated employee labor rights by disciplining them for wearing accessories with the “BLM” slogan since wearing such apparel was not connected “with their employment or working conditions.”

In other news, the Senate Committee on Health, Education, Labor and Pensions will vote on Feburary 27th on Julie Su’s nomination as Labor Secretary. Her nomination has been stalled – since February, 2023 when President Biden first nominated her to the role – in large part due to Republican and Senator Manchin’s public opposition.

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