Whole Foods grocery workers who claimed that they were unjustly disciplined for wearing Black Lives Matter-themed pins, masks, and other items in 2020 have suffered a setback in their complaint to the National Labor Relations Board. According to CNN, Administrative Law Judge Ariel Sotolongo ruled that because wearing Black Lives Matter items was not connected to their jobs, punishment for doing so when Whole Foods managers said they could not was not a labor law violation. The ruling, which can be appealed to the board, covered 14 employees in four states who said disciplinary actions Whole Foods claimed were violations of its dress code were retaliation.
The NLRB General Counsel, on the other hand, argued that because Black Lives Matter was a movement opposing all racism, Whole Foods workers supporting it were opposing racism at work. But Sotolongo said support for the movement was not linked to specifics at the various stores where employees worked.
He argued against the claim that workers were supporting a goal related to their employment, saying it was an attempt at objectively establishing the mutual aid and protection goal of employees wearing BLM messaging by impermissibly weaving in multiple subjective motivation statements from a few select individuals.
The judge did rule that Whole Foods’ dress code from 2013 to 2020, which prohibited workers from wearing “any visible slogan, message, logo or advertising on them,” was too broad. Whole Foods praised the ruling, while the lawyer representing the workers did not.
“Our diverse culture continues to be a source of great pride for Whole Foods Market, and we remain focused on creating both a safe and inclusive workplace for all,” the company said. Attorney Shannon Liss-Riordan, on the other hand, said the ruling was wrong. “If employees have a good-faith belief that they are taking an action to promote and to improve the terms and conditions of their workplace, that is protected activity,” she said.
It remains to be seen whether the affected workers will choose to appeal the ruling to the National Labor Relations Board. While the case may be seen as a minor but ongoing battle in the larger war over workers’ rights and racial justice, it has highlighted the challenges and nuances facing employees who wish to publicly support social movements within the workplace. In any event, the outcome of this particular case is likely to influence how future similar situations are addressed by employers.
