The Home Depot Employee Clash With Management Over BLM Logo Offers a Lesson on Rights and Contracts
September 29, 2022 | Tags: FEE
Several employees at a Home Depot in Minnesota decided to affix Black Lives Matter labels onto the aprons given to them by their employer. Why? According to one of the workers involved: “It's something that I put on so that people know to approach me. I am a person of color myself, so it's a form of solidarity. It's a way ... for people to feel safe around me.”
Management, however, forbade this initiative. Perhaps it did so on the ground that while the employees involved may “feel safe,” customers might react differently to the slogan and take their business elsewhere.
The decision of the employer did not sit well with workers who wished to show themselves allied with BLM. After being told they would be fired if they persisted in their adornment decision, they chose to resign. One employee then brought a lawsuit against Home Depot, alleging the employee was "required to choose between engaging in protected concerted activity, including displaying the 'BLM' slogan, and quitting employment.”
National Labor Relations Board Judge Paul Bogas dismissed the case. Siding with the defense, he averred that the plaintiffs could only wear what they pleased in criticism of their employer if it be part and parcel of a collective effort that either calls for a wage increase or an improvement in working conditions. He ruled that “A message about unjustified killings of Black men, while a matter of profound societal importance, is not directly relevant to the terms, conditions, or lot of Home Depot's employees as employees."
This raises four separate issues:
1. May an employer ban clothes on the job depicting messages irrelevant to employment conditions?
2. May an employer ban clothes off the job depicting messages irrelevant to employment conditions?
3. May an employer ban clothes on the job depicting messages relevant to employment conditions?
4. May an employer ban clothes off the job depicting messages relevant to employment conditions?
The judge has made a positive ruling on the first of these alternatives. That is, in the judge’s opinion, an employer has the right to ban clothes on the job with messages irrelevant to employment conditions. What about the others? On the third one, it is clear from Bogas’ ruling, he would have found in favor of the plaintiff. That is, he would have prohibited the employer from penalizing workers for depicting signs relevant to employment conditions.
Presumably, the judge, and virtually all people, would have sided with the workers, not the employers, had the company dared even try to influence what employees may do when off duty. So much for options two and four. Such demands would have been interpreted as a violation of the First Amendment’s guarantee of free speech rights. Thus, we are safe in surmising that the ruling from the bench, in options two and four, would have been against the employer.
Is there any legal theory that would side with the employer on all four scenarios? Yes, there is. It is called libertarianism. Here, people would be free to make any mutually agreeable commercial arrangements they wish. In the felicitous phraseology of Robert Nozick, they would be free to engage in “capitalist acts between consenting adults.”
The employer would be free to make any weird offer to any potential employee. He could go so far as to demand that they push the proverbial peanut with their noses on the ground before they enter his premises every day before beginning work; and afterwards too. He would certainly be free to demand ornamentation to his liking, not theirs, when on the job or on their own time; for example that they be required to display, or be forbidden to display, BLM emblems on their clothes, 24-7. And the same goes for anything else under the sun: a Nazi swastika, a Christian cross, a Jewish star, a yalmica, a fez, whatever. He might have to pay a higher salary to attract a work force depending upon such demands, but that is entirely a different matter and an irrelevant one.
The freedom to make contracts as we see fit can lead to all sorts of weird arrangements, and some of these arrangements may seem to violate people’s rights. But if we consider the issue carefully, we see that the true rights-violation would be preventing consenting adults from creating their own contractual obligations as they see fit.
So let’s allow employers and workers to make whatever voluntary arrangements are suitable to them. This is what real economic freedom is all about.