The Association filed an amicus brief in support of The Home Depot, urging a federal court to overturn a National Labor Relations Board (NLRB) decision that opens the door for unchecked social and political protests in the workplace.
Background: Earlier this year, the NLRB ruled that The Home Depot unlawfully dismissed a worker for having a Black Lives Matter (BLM) slogan on a uniform, which violated a company policy allowing only company issues buttons or pins. Under federal labor law, employees are protected from employer discipline for engaging in activities with other employees to protest terms and conditions of their employment, known as “protected concerted activity.” Generally, there must be a connection between the activity and the employees’ workplace. However, the current Board – in this case and others – has taken an increasingly broad view on the scope of protected activity and has indicated that political and social protests are also likely protected. The Home Depot appealed the decision to the Eighth Circuit Court of Appeals.
HRPA’s brief: The Association urged the Eighth Circuit to overturn the Board’s decision, arguing that the employee’s activity was neither concerted nor protected under federal labor law. Instead, the action was undertaken solely by the employee and in connection with a general social/political protest that was entirely unconnected with the employee’s workplace conditions. The brief urged the Court to curb the Board’s expansive approach to protected concerted activity, arguing that it should be limited exclusively to activity with a direct connection to actual workplace issues and not general social and political protests.
Looking ahead: Over the last year, federal courts have not been shy about doing away with some of the Board’s more overly broad decisions – hopefully a similar result is reached in the present case. As we head towards a particularly divisive election season, it is essential to protect employers’ ability to take reasonable steps towards maintaining workplace civility and productivity without running afoul of federal labor law.
