Is it illegal to have employee dress codes? In a consolidated case filed by the National Labor Relations Board, (NLRB) against Whole Foods Market, that’s what the implication is.
The NLRB argues Whole Foods cannot say to its employees that they can’t wear Black Lives Matter(BLM) paraphernalia while at work.
The company counters that to force Whole Foods employees to wear BLM gear is “to compel employer Speech”. It claims that this would violate the First Amendment.
Whole Foods corporate policy prohibits employees wearing symbols, slogans or flags while on the job. Supervisors in various Whole Foods stores enacted this policy to prevent employees from wearing BLM gear in 2020. BLM masks or pins worn by staff were requested to be taken off, then they were sent home to refuse to do so, or else disciplined.
According to the NLRB, wearing BLM symbols at work is considered “raising concerns about working conditions”. Whole Foods has been accused of imposing an appearance restriction on employees “to prevent them from participating in coordinated activities for mutual assistance and protection.” Whole Foods “has been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed” by the National Labor Relations Act, it says—and that, it declares, amounts to unfair labor practices.
Whole Foods “denies each and every allegation contained in the Complaint,” the company wrote in response, asking that the complaint be dismissed entirely.
Whole Foods argues that “employees do not have a protected right…to display the phrase ‘Black Lives Matter’ or ‘BLM’ in the workplace,” and that the NLRB’s complaint represents an effort to expand the protections of the National Labor Relations Act “beyond current NLRB and judicial interpretation.”
The company claims that nothing done by the Whole Foods employees who were promoted to BLM would be considered protected. Whole Foods would not be considered illegally to interfere with protected workplace activities by its actions.
It states that the company maintains a neutral dress code, which is legal under existing Board law. Furthermore, all discipline given to employees was only for violating of [this]”Neutral dress code.” These actions were based upon legitimate, nondiscriminatory, and non-retaliatory factors.
Jill Coffman, NLRB Regional Director San Francisco, stated that the case was about “issues racial harassment or discrimination.” [that]They are essential to the working environment of employees.”
But “the phrases ‘Black Lives Matter,’ ‘BLM,’ the ‘Black Lives Matter movement,’ and/or ‘blacklivesmatter.org’ are not objectively understood to relate to workplace issues,” the company argues. “Employees wearing ‘Black Lives Matter,’ /or BLM’ at Whole Foods Market store brands was a form of social and political justice speech.” [they] sought to support societal changes outside the workplace and…without a nexus to any term or condition of employment at Whole Foods Market brand stores.”
According to the company, requiring Whole Foods that BLM messaging be included in employee uniforms would allow speech and violate Constitutional rights. It adds that if the NLRB wins, Whole Foods would be forced to discriminate by requiring it to favor certain expressions of political speech in its grocery stores. Alternately, the NLRB could also allow Any type of political messaging, but something tells me supporters of the staff wearing BLM gear wouldn’t be so happy to buy groceries from a guy in a MAGA mask…)
Whole Foods claims that none of its employees were dismissed over the matter, but they did so voluntarily and in accordance with the dress code.
March 1, will see a hearing by an administrative judge from the NLRB.
A federal judge last year dismissed the majority of a class action lawsuit against Whole Foods for allowing BLM equipment to be used at work. The civil lawsuit brought by plaintiffs against Whole Foods accused its supervisors of discrimination, retaliation and selective enforcement of the policy. U.S. District Judge Allison Burroughs found that Whole Foods was not violating the law even if they were true about the unequal enforcement. She stated that there is no right of free speech at a private workplace and that it is legal for companies to decide which logos or messages their employees can endorse.
Burroughs wrote in her decision that “At the worst, they were selectively applying a dress code in order to suppress certain speech at work.” She said that, “however unpleasant it might seem,” the Civil Rights Act of 1964 does not make this conduct illegal. This law prohibits discrimination against people based on their race. It doesn’t protect one from being associated with a social cause in any way, at least not if it is related to race, on the job.
Jonathan Turley, a law professor recently stated that the Whole Foods/BLM controversy “highlights an increasing incomprehensible posture on corporate speech for many left,” as Jonathan Turley suggested. Many progressives have argued that social media platforms, web hosting companies, and other internet entities should be allowed (and encouraged) to ban various types of legal speech—coronavirus misinformation, say, or false claims of election fraud. This rubric should allow Whole Foods to inform employees about what messages they are not allowed to wear to work.
Although conservatives believe Whole Foods shouldn’t have to permit BLM-themed attire in its uniforms this case illustrates hypocrisy from the right. Some argue that social media companies should force them to publish political content they don’t like.
The takeaway is perhaps that the government can compel hostages from companies. AnyIt is dangerous to allow political speech of any kind. It’s not only constitutional to let companies determine what speech is allowed on their platforms and premises. It is the only way for each side to get what it wants. SometimesThis will ensure that customers are not bombarded at all with messages from politicians.