Workplace speech can be a safety issue: New guidance from the federal bench

Many of us remember the events of May 2020, when Minnesota resident George Floyd tragically lost his life in an interaction with local police. The incident sparked national outrage, resulted in criminal convictions for officers involved in the events, and placed the Black Lives Matter (BLM) movement centerstage in the nationwide conversation about race relations in this country. A recent decision from a federal appeals court involving employee speech in response to Floyd’s death offers insight on when employers can place limits on workplace speech for safety reasons.

BLM at work?

Shortly after Floyd’s death, and less than seven miles away, certain Home Depot employees began wearing BLM insignia while at work. One employee wrote “BLM” in black marker on the front of the orange Home Depot apron he wore while on shift, stating he did so as an “act of solidarity” against “prejudice and racism.”

While Home Depot’s dress code generally encourages employees to personalize the aprons they wear while on shift, in this instance, the employee’s manager insisted he not return to work until the particular personalization that he chose—referencing support for the BLM movement—was removed. The employee refused to remove the lettering, resigned, and filed a charge of unfair labor practices with the National Labor Relations Board (NLRB). The NLRB then took up the employee’s cause, filing suit to allege that the act of refusing to allow employees to write “BLM” on their work aprons interfered with rights protected by the National Labor Relations Act (NLRA).