Whole Foods can continue its practice of disciplining workers for wearing Black Lives Matter (BLM) logos at work.
An administrative law judge for the National Labor Relations Board (NLRB) ruled on Dec. 20 that wearing BLM apparel wasn’t legally protected activity because it wasn’t directly connected to an effort to improve employees’ working conditions.
The dispute arose when employees started wearing pins, buttons or face masks with the phrase “Black Lives Matter” after the killing of a black man, George Floyd, by a white Minneapolis police officer in May 2020. Whole Foods told employees that the messaging violated the company dress code, which prohibited the wearing of visible logos, slogans or advertising while working. Union insignias are permitted.
The company required workers to remove the BLM apparel or clock out and go home without pay. Those who chose to go home incurred time and attendance or dress policy violations, which in some cases led to their firing, according to the NLRB case summary. The case cited occurrences in stores in Philadelphia and Seattle.
Amazon owns Whole Foods Markets, which operates about 500 grocery stores across the country with more than 90,000 employees. “We remain focused on creating both a safe and inclusive workplace for all. We are pleased with the outcome of this case,” said Rachel Malish, a spokesperson for Whole Foods.
We’ve gathered a group of articles on the topic from SHRM Online and other trusted sources.
Social Movement Not Related to Working Conditions
The National Labor Relations Act (NLRA) gives workers the right to join together speak out about workplace issues, but the boundaries have changed over time.
The Whole Foods employees argued that, by wearing the BLM apparel, they were engaged in protected, concerted activity under the NLRA because they consulted with each other and intended to express their opposition to systemic racism at work and help Black employees feel safe at work.
However, NLRB administrative law judge Ariel Sotolongo concluded NLRA protections didn’t apply in this case because the BLM social movement wasn’t directly related to the workers’ terms and conditions of employment.
“There is simply no evidence that there were any employee concerns, let alone complaints or grievances about racial inequality or any manner of racially based discrimination by Whole Foods Market prior to or at the time they started donning BLM messaging,” he wrote. “The evidence persuades me that the employer was merely trying to avoid controversy and conflict at its stores, which it believed BLM messaging would invite.”
District Court Ruling on Discrimination, Retaliation
On Jan. 23, the U.S. District Court for the District of Massachusetts rejected retaliation charges against Whole Foods Market over its policy of prohibiting employees from wearing face masks that read “Black Lives Matter.” A three-judge panel for the 1st U.S. Circuit Court of Appeals then heard the case on Dec. 5 and seemed split over whether to revive it.
Three Whole Foods employees sued the company, alleging race discrimination and retaliation after they wore Black Lives Matter masks at work and were fired. The district court concluded that the employees didn’t prove Whole Foods had discriminatory or retaliatory motives.
(SHRM Online and Reuters)
Different Outcome in a Similar Case
On May 3, an NLRB administrative judge ruled Fred Meyer Stores, a supermarket chain based in Portland, Ore., illegally disciplined workers for wearing items with the BLM logo.
Prohibiting workers from wearing BLM slogans violated the workers’ rights to voice their opinions about working conditions, Judge Mara-Louise Anzalone concluded. She ordered the company to revise its dress code, offer back pay to workers who were sent home due to dress code enforcement, and delete from its records any references to discipline or warnings given to these workers because of dress code enforcement.
