Whole Foods fights for Black Lives Matter Masks Pits National Labor Relations Board against free speech

Are employee dress codes illegal? This is the implication in a consolidated complaint filed against Whole Foods Market by the National Labor Relations Board (NLRB).

The NLRB argues that it is illegal for Whole Foods to say that grocery store staff cannot wear Black Lives Matter (BLM) paraphernalia to work.

Forcing Whole Foods to let staff wear BLM clothing would be like “forcing the employer to talk”, the company counters. And that, he says, violates the First Amendment.

As it stands, Whole Foods corporate policy prohibits employees from wearing any symbols, slogans, flags, messages, logos, or advertisements while on the job. In 2020, supervisors at various Whole Foods locations reportedly enforced this policy against employees wearing BLM gear. Staff wearing BLM masks and pins would have been asked to remove them, sent home for refusing to remove them, or otherwise disciplined for refusing to remove them.

The NLRB says wearing BLM messages at work counts as ‘raising concerns about working conditions’ and accuses Whole Foods of having and enforcing an appearance rule ‘to prevent employees from engaging in activities together for their mutual aid and protection”. Whole Foods “has interfered with, restricted and coerced employees in exercising the rights guaranteed” by the national labor relations law, he says – and that, he says, amounts to unfair labor practices.

Whole Foods “denies each of the allegations contained in the complaint,” the company wrote in response, asking that the complaint be dismissed in its entirety.

Whole Foods argues that “employees have no 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 national labor relations law protections “beyond current NLRB and judicial interpretation.”

Under current interpretations of the law, nothing Whole Foods staffers promote BLM would qualify as protected activities, the company claims. Nor would Whole Foods’ actions here be considered unlawful interference with protected workplace activities.

The company “maintains a gender-neutral dress code which is legal under current council law,” it adds, and “any disciplinary action imposed on employees was solely for violations of [this] neutral dress code. Such actions “were based on legitimate, non-discriminatory and non-retaliatory factors.”

In a statement last month, NLRB regional director for San Francisco, Jill Coffman, said the case involved “issues of racial harassment and discrimination. [that] are at the heart of the working conditions of employees.

But “the terms ‘Black Lives Matter,’ ‘BLM,’ the ‘Black Lives Matter’ movement, and/or ‘blacklivesmatter.org’ are not objectively understood to relate to workplace issues,” the company claims. On the contrary, “the employees’ wearing of “Black Lives Matter” and/or “BLM” in Whole Foods Market branded stores was an exercise in political and/or social justice discourse through which [they] sought to support societal change outside of the workplace and…unrelated to any conditions of employment at Whole Foods Market branded stores.

Requiring Whole Foods to allow BLM messaging as part of employee uniforms would compel parole and be unconstitutional, the company claims. If the NLRB has its way, he adds, it would force Whole Foods to act in a discriminatory manner by requiring the company to favor “certain expressions of political speech over others in its retail grocery stores.” (Alternatively, this could allow any type of political message, but something tells me that staff supporters wearing BLM gear wouldn’t be so happy buying groceries from a guy wearing a MAGA mask…)

Whole Foods also claims that no employees were fired over the matter, but that they voluntarily quit rather than comply with the dress code.

A hearing with an NLRB administrative judge is scheduled for March 1.

Last year, a federal judge dismissed most of a class action lawsuit against Whole Foods stores banning BLM equipment at work. Plaintiffs in the civil case accused Whole Foods supervisors of selectively enforcing the policy and unlawful discrimination and retaliation. Even if the claims of uneven enforcement are true, Whole Foods is still not breaking the law, U.S. District Judge Allison Burroughs said. “There is no right to free speech in a private workplace,” she said, and it is legal for a company to choose which messages or logos its staff can approve of at the time. job.

“At worst, they were selectively enforcing a dress code to suppress certain speech in the workplace,” Burroughs wrote in her ruling. “As unattractive as it may be,” she continued, “it is not conduct made unlawful” by the Civil Rights Act of 1964. The law “prohibits discrimination against a person because of his race. It does not protect his right to associate with a particular social cause, even racial, in the workplace.”

The Whole Foods/BLM debate “highlights an increasingly incomprehensible position on corporate discourse for many on the left,” law professor Jonathan Turley recently 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, for example, or false allegations of electoral fraud. Under this heading, Whole Foods should also be allowed to tell employees what messages not to wear at work.

To the extent that Tories agree that Whole Foods shouldn’t be forced to allow BLM clothing as part of its uniforms, the case also highlights the hypocrisy on the right, where many have argued that the companies of social media should be required to host political content that they find objectionable.

Perhaps the takeaway here is that allowing the government to compel companies to host any kind of political discourse is a slippery slope. Letting companies decide what kinds of speech they will allow on their premises and platforms is not just the constitutional thing to do. This is the best way to ensure that each side will get what they want sometimes, and that consumers can avoid being constantly bombarded with political messages at every turn.

About Dora Kohler

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