Federal and New Jersey employment laws protect workers’ rights to engage in a wide range of “concerted activities” intended to improve conditions for workers, both in the workplace and society at large. These protections extend beyond activities that are directly related to union organizing and collective bargaining. In February 2024, the National Labor Relations Board (NLRB) ruled that federal law protects the display of certain social justice messages in the workplace. A customer-facing employee at a big-box retail store wrote “BLM,” the initials for “Black Lives Matter,” on his employer-issued apron. The employer considered this a violation of its dress code policy. The NLRB held that the employer violated the law by instructing the employee to remove the marking on his apron.
Section 7 of the National Labor Relations Act (NLRA) states that employees have the right to engage in activities related to self-organization and collective bargaining. It also states that they have the right “to engage in other concerted activities for the purpose of…mutual aid or protection.” The meaning of “concerted activities” is not limited to activities that involve two or more employees. An individual employee may engage in protected concerted activities, according to NLRB precedents, in several situations, including:
– They are acting with other employees’ approval;
– They are bringing a group complaint to management’s attention; or
– Their activity is a “logical outgrowth” of past concerted activity.
Employers commit an unfair labor practice under § 8 of the NLRA when they “interfere with, restrain, or coerce employees” who are trying to exercise their § 7 rights. They also violate the law if they fire an employee or take other adverse actions against them for engaging in protected activities.
The employee in the NLRB case began working for the employer in August 2020. Over the next few months, he raised multiple complaints about racial bias and discrimination by supervisors and other employees. He wrote the initials “BLM” on his work apron at some time in the fall. After a display for Black History Month that he helped prepare in February 2021 suffered at least two incidents of vandalism, management began asking about the BLM initials on his apron. Two managers reportedly told him that “if [they] allowed [the employee] to keep the BLM initials, [they] would have to let other employees wear swastikas.” The employee objected to this comparison. Management insisted that he was violating the dress code. The employee resigned shortly afterward.
The NLRB ruled that the employer violated the NLRA and that the employee’s resignation amounted to constructive firing. It found that the initials on the employee’s apron were a logical outgrowth of his and other employees’ efforts to bring attention to racial bias and discrimination in the store. His refusal to remove the marking, the NLRB found, “was for the purpose of mutual aid or protection.” It rejected the employer’s argument that “special circumstances” allowed it to require the removal of the marking because of its “controversial” nature.
If your employer has engaged in unlawful practices and violated your rights under state or federal law, an experienced employment attorney can help you assert a claim for damages. The Resnick Law Group advocates for workers in New Jersey and New York in a variety of claims. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or 646-867-7997.