Dive Brief:

• Retailer Fred Meyer and grocer QFC — both Kroger brands — may have violated federal labor law when they refused to allow workers to wear Black Lives Matter buttons, according to the National Labor Relations Board.
• The board's Seattle regional office told HR Dive it found merit to at least one charge related to the buttons and is seeking a settlement agreement.
• According to a union representing the employees, UFCW 21, the agency found merit to allegations that the employers violated federal law by "1) failing to bargain with the Union over a change in workplace conditions — in this case the practice of allowing the wearing of buttons at work; and 2) prohibiting workers from taking action together — in this case, by wearing Black Lives Matter messages — to protest racism in the workplace and in society, generally." The employers did not respond to a request for comment.

Dive Insight:

Similar disagreements about workplace attire have cropped up at employers across the country during the past year.

Shortly after police killed George Floyd in May 2020 and the Black Lives Matter movement gained momentum, Starbucks prohibited workers from displaying Black Lives Matter messages at work. After widespread outcry, the employer walked back its policy, allowing such attire until it could distribute its own Black Lives Matter shirts.

Whole Foods is facing a lawsuit alleging it engaged in discrimination when it refused to allow workers to wear Black Lives Matter masks. While the employer reportedly maintains a policy prohibiting clothing with slogans and logos, workers alleged that policy went unenforced with respect to other causes.

And just last month, another NLRB regional office filed a complaint against Home Depot, alleging it "unlawfully enforced its otherwise lawful dress code and apron policies" against employees wearing Black Lives Matter attire.

Employers are mostly free to set dress codes, but some federal laws may require caution. For one, Title VII of the Civil Rights Act prohibits discrimination based on race and several other characteristics. In the Whole Foods example, the workers alleged Black Lives Matter attire was treated differently than items such as LGBT pride emblems.

And under the NLRB's purview is the National Labor Relations Act, which, among other things, protects actions workers take together — concerted activity — to improve their working conditions. It remains to be seen whether causes such as Black Lives Matter have close enough ties to the workplace to be protected, but NLRB previously held that employees who walked off worksites across the country for 2017's Day Without Immigrants were engaging in protected concerted activity.