Whole Foods didn't break the law by punishing workers who wore pins and face masks with BLM slogans, judge rules

• Whole Foods didn't break the law when it banned workers from wearing BLM slogans, a federal judge ruled.
• In some cases, workers were disciplined for wearing face masks and pins with BLM slogans.
• The judge said that wearing these items wasn't a protected activity.

Whole Foods didn't break the law when it banned workers from wearing apparel and accessories with Black Lives Matter slogans and in some cases disciplined them for breaking this policy, a federal judge has ruled.

From early June 2020, following the killing of George Floyd, some Whole Foods staff starting wearing items including face masks, pins, jewelry, and T-shirts with BLM phrases such as "I can't breathe," "BLM," and "Black Lives Matter."

Managers and supervisory staff at the Amazon-owned retailer told workers that this violated the company's dress code, and generally told them that they could either remove the item in question or clock out and go home early, which incurred attendance or dress-policy violations, allegedly leading to discharges in some cases, per the case proceedings. Some employees staged walkouts after being told they couldn't wear accessories with BLM slogans.

In a summary of the case, Ariel L. Sotolongo, an administrative law judge for the National Labor Relations Board, said that the grocery-store chain hadn't disputed that it had banned staff from wearing BLM messaging and disciplined them for violating this policy.

Instead, the case focused on whether this ban broke Section 7 of the Labor Relations Act, which says that the wearing of some items related to employment conditions like union buttons and T-shirts is a protected concerted activity, and whether disciplining staff based on this was unlawful, Sotolongo wrote.

Whole Foods' uniform policy had told staff that to wear company-branded shirts or ones "without any visible slogan, message, logo or advertising on them," and said only company hats were allowed.

Barbara Smith, the retailer's vice president of team member services, testified that after workers started wearing items with BLM messaging, the company's leadership agreed that this violated the dress code and discussed how to enforce the policy while acknowledging the delicacy of the subject and respecting staff's opinions.

The NLRB General Counsel, representing the affected Whole Foods staff, argued that workers wore items with BLM messaging at work to show solidarity with their Black colleagues and show opposition to systemic racism in the workplace. The General Counsel also said that some employees saw Whole Foods' ban of BLM messaging as discriminatory and racist, and therefore their defiance of the policy was protected activity.

But Sotolongo wrote that interviews with workers suggested that the majority started donning BLM messaging to show support for the movement generally, without any specific goal connected to their employment or working conditions. Workers only started looking for a way to connect the items to their employment to provide legal cover after Whole Foods starting disciplining staff for violating the policy, Sotolongo wrote, citing online messages between workers.

Sotolongo also wrote that the "vast majority" of employees disciplined for wearing BLM messaging were not Black.

"The fact that BLM may be a movement of great significance to African Americans, and that its goals are valid, does not mean that a rule prohibiting the displaying of such message at work is 'racist,'" he wrote.

"The fact that WFM in the past had permitted and even supported employees donning messages is support other social-political causes, such as the LGTBQ movement, does not support the implication that the banning of BLM messaging was racially motivated."

Sotolongo concluded in a decision on Wednesday that Whole Foods workers who wore items with slogans related to the BLM movement weren't engaged in protected activity under Section 7 of the Act and that disciplinary actions taken by the retailer, including verbal and written warnings, didn't violate the Act.

But Shannon Liss-Riordan, the lawyer representing the workers, told The New York Times in response to the ruling that if employers believed that they were taking an action to improve the terms and conditions of their workplace, that should count as protected activity.

Sotolongo did, however, note that the uniform policy Whole Foods had in place from 2013 to 2020 violated part of Section 8 of the Act because it was "overly broad" and didn't state that staff could wear union insignia. Barbara Smith, the retailer's vice president of team member services, had previously testified that the policy allowed workers to wear union insignia like pins and buttons.

Whole Foods told CNN that it was "pleased" with the outcome, adding that it was focused on creating "both a safe and inclusive workplace for all."

Whole Foods updated its dress code in late 2020, which explicitly prohibited employees from wearing face masks with prints, slogans, or logos bigger than one inch.