On December 3, Region 20 of the National Labor Relations Board issued a sweeping, consolidated complaint alleging that Whole Foods Market, Inc. violated federal labor law by maintaining and enforcing rules regarding workplace attire that prohibited employees from wearing Black Lives Matter messaging at work. The complaint marks the latest broadside from the new General Counsel against employers’ rights to establish and maintain work rules limiting employees’ rights to express their views at work, regardless of the impact on the employer’s business.
Broadly speaking, the complaint pertains to the actions of several Whole Foods employees at various stores across several states last year in connection with the social unrest following the killing of George Floyd, and Whole Foods’ alleged response to that activity. Specifically, the NLRB alleges that since about June 2020, Whole Foods employees “engaged in concerted activities for the purpose of mutual aid and protection by raising concerns about working conditions, including by wearing Black Lives Matter messaging at work.” In the complaint, the NLRB further contends that since at least April 2020, Whole Foods had a “Face Mask Standard Operating Procedure” that, among other things, prohibited masks or face coverings with any visible slogan, message, logo or advertising. The complaint also references a dress code policy, in effect from at least May 2020, that required employees to wear Whole Foods Market attire without any visible slogan, message, logo or advertising, and notes that “since at least November 7, 2020,” Whole Foods’ update to its Dress Code Policy included similar limitations applicable to all apparel worn by employees, with an express exception for union-related insignia, pins or buttons.
According to the complaint, Whole Foods is alleged to have violated the act by maintaining and enforcing the above-referenced rules. Separately, the General Counsel alleges that the November 7 “update” to the rules was promulgated in response to the employees’ protected concerted activities, including their Black Lives Matter messaging and to discourage them from engaging in such activities. The General Counsel goes on to allege that Whole Foods violated the Act by disciplining several employees for violating the rules against wearing BLM messaging in the workplace.
Based on the complaint, it appears that the General Counsel is contends that the mere maintenance of a policy or rule prohibiting employees from wearing or displaying BLM messaging while at work violates Section 7 of the NLRA. Although we are not aware that the NLRB previously has construed the Act in such a manner, as I laid out in this presentation, the current General Counsel has signaled time and again that she interprets employee rights under the Act very broadly and will pursue cases to effect change in the Board’s jurisprudence in this area. Of further note is the General Counsel’s view that certain activity may be viewed as “inherently concerted” even if only one employee participates in such activity.
Whole Foods’ actions in this case also were the subject of a lawsuit filed in the U.S. District Court for Massachusetts alleging violations of Title VII of the Civil Rights Act. Earlier this year, the District Court threw out most of the allegations against Whole Foods, finding that a rule generally prohibiting employees from wearing logos, insignia or messaging did not constitute actionable discrimination under Title VII. The District Court’s ruling has been appealed.
As of this writing, Whole Foods has not yet filed an answer to the complaint, but a hearing has been scheduled for March 2022. Employers everywhere should take note of the NLRB’s action here – the General Counsel takes a very broad view of what constitutes “protected activity” under the Act, and even well-intentioned, evenly enforced rules may be found to be an unfair labor practice under the new regime.
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