The Black Lives Matter movement began in 2013 after George Zimmerman was acquitted in the trial surrounding the death of African American teen Trayvon Martin. Since then, it has been a mainstay in social discourse, with usage spikes following the deaths of Michael Brown, Eric Garner and Freddie Gray; and during the months leading to the 2016 and 2020 presidential elections. Usage of the term spiked in the months following the death of George Floyd in Minneapolis in 2020.

According to the Pew Research Center in June 2023, almost exactly half (51%) of U.S. adults say they support the Black Lives Matter movement. Such a division is similarly reflected in workplaces across the country. As an employer, can you limit employees’ advocacy for the movement, knowing the tensions it can create in your workplace? As an employee, can you openly and proudly support Black Lives Matter without fear of reprisal from coworkers or management?

All 50 states, including the District of Columbia, are at-will employment states – meaning that employees can be terminated for any or no reason, with or without notice, but not for an illegal reason. One example of an illegal reason would be an infringement upon employees’ rights under the National Labor Relations Act (NLRA). The NLRA affords employees the legal right to engage in “protected concerted activity.” This right – which is afforded to employees regardless of whether they are unionized – allows employees to act in concert with one another to address work-related issues.

Just last week, the National Labor Relations Board (NLRB) held that an employer (Home Depot) violated the NLRA when it discharged an employee for refusing to remove the “BLM” acronym the employee had hand drawn on their work apron. The Board found that the “BLM” drawing was a “logical outgrowth” of prior employee complaints about racial discrimination in the workplace – therefore rendering the message to be “protected” and “concerted.” However, the Board cautioned, just the displaying of “BLM,” even without instances of prior discrimination allegations, could “arguably” support a finding of protected concerted activity by itself. That likely will be the subject of more litigation down the road. (Perhaps this case.)

Can employees use this ruling to swap out their work uniforms with Black Lives Matter shirts? Hardly. Employers can prohibit employees’ display of protected insignia on their apparel if “special circumstances” justify the prohibition. Such circumstances include concerns regarding safety (employee or equipment) and the employer’s public image. However, when employers allow employees to otherwise personalize their apparel within reason (such as in this case, where Home Depot allowed employees to add written messages and images to their work aprons), the employer cannot assert that a protected message is over the line.

The issue of political speech in the workplace, including messages supporting Black Lives Matter, will become more and more prevalent during this presidential election year. Contact an RKW Employment Attorney to discuss your legal rights.

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