Could wearing a Pin get you fired?
While a majority of American employers have expressed solidarity with the Black Lives Matter (“BLM”) movement, there are several that hesitate to allow employees to overtly express their support for the movement by wearing such things as shirts, buttons, or pins in the workplace. Most employers have justified these restrictive policies on the basis of maintaining a safe, non-hostile work environment. When it comes to employees’ right to wear a BLM pin we must first distinguish whether the employee is a public-sector/government or a private sector employee. Federal and State employees are afforded a much higher free speech level of protection when it comes to wearing pins that may be a matter of “public concern.” Whereas private sector employees must be able to prove that the pin is directly related to a work-related issue.
FEDERAL/ STATE EMPLOYEE RIGHTS
The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
It is important to note, however, that the First Amendment is a limit only on the government. It prohibits the federal government from making laws that infringe on the rights of religion, speech, press, assembly, and petition, and is extended to state and local governments through the Fourteenth Amendment. But still, this restriction is applicable only to government entities. The result is that employees working for a government employer enjoy broader free speech protections than if they worked for a private employer – a distinction that is significant when it comes to their job security and ability to express their social or political ideas in the workplace.
The Supreme Court has held that public employee speech involving matters of public concern constitutes protected speech under the First Amendment. Therefore, a judge will have to look at the form, context, statement of record, and the scope of media attention and controversy to decide whether the BLM pin is a matter of public concern before allowing you to bring a claim against your employer if you were terminated or retaliated against for exercising your 1st Amendment rights. Wearing a BLM pin, as a federal or state employee may provide you the ability to bring a case against your employer, if you were terminated or retaliated against for wearing a BLM pin, as long as you are able to prove that the BLM pin is a matter of public concern.
PRIVATE SECTOR EMPLOYEE RIGHTS
Private sector employees, meaning those employed by an entity other than the federal or state government, are not afforded the same protections under the First Amendment as public employees. Florida specifically, is an employment-at-will state, which means that employees can be fired, demoted, transferred for any reason so long as it is not contrary to the law. Therefore, when we are looking to see if it is unlawful to discipline an employee for engaging in certain conduct, such as wearing a pin, we must be able to address whether wearing a pin is protected conduct.
ARE ALL PINS CREATED EQUAL?
No. What this means is that in order for a pin to qualify as protected conduct under the law, it must meet a very narrow exception. The content of the pin or advocacy thereof should be tied to a concerted activity as defined by Section 7 of National Labor Relations Act (NLRA). Concerted Activity is an employee’s right to act collectively with co-workers to address work-related issues. The two key elements are that the action is collective and relates to the terms and conditions of employment. Therefore, if employees are wearing pins that advocate or highlight work-related issues, then those pins could be protected under Section 7 of the NLRA. For example, in a recent Fifth Circuit Case, the Court concluded that an employer could not justify its ban on the wearing of a “Fight for 15” button by employees while at work. The Court found that the button was worn by employees as a means to advocate for higher wages, and was therefore a work-related issue. But it is important to note that merely wearing a pin does not provide employees any legal protections, and your employer can ask you to remove it.
WHEN CAN A BLM PIN BE PROTECTED CONDUCT?
A BLM pin could potentially rise to the level of being protected conduct if the reason you are wearing it is to address work-related issues. For example, if employees believe that the employer has acted in a discriminatory fashion towards black employees or if wearing the pin is an effort to foster inclusion within the workplace, then the wearing of the pin could be potentially protected under Section 7 of the NLRA, and an employer requiring employees to remove it could be discriminatory.
CAN AN EMPLOYER PICK WHICH EMPLOYEES WEAR PINS?
Under federal laws, an employer may not discriminate against an employee based on their age, race, religion, disability, national origin, or disability. Therefore, if an employer is going to allow any pins at their workplace, they cannot choose which employees can and can’t wear pins based on their race, color, religion, etc. Doing so could give rise to an employment discrimination claim.
CAN AN EMPLOYER SPECIFICALLY NOT ALLOW BLM PINS BUT ALLOW ALL OTHER PINS?
If the pin is worn to advocate for a work-related issue, such as the discrimination of black employees or advocacy of stronger inclusion, and employees are disciplined or terminated they could have a claim under Section 7 through Section 8 of the NLRA which states that an employer must not “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. However, if an employer can prove their reasoning for banning such pin was due to a “special circumstance” such as it “(1) jeopardize[d] employee[s] safety; (2) damage machinery or products; (3) exacerbate employee dissension; or (4) unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees” as long as their decision was not made in a discriminatory fashion a Court could find that their decision met a special circumstance. See In-N-Out-Burger, Inc. v. NLRB, 894 F.3d 707, 715 (5th Cir. 2018).
WHAT CAN I DO IF I WAS DISCIPLINED BY MY EMPLOYER FOR WEARING A BLM PIN?
TAKE ACTION. In order to be successful in a Section 7 discrimination claim, it is crucial to focus on the facts, specific issues, and details. For example, look for any comments/ actions an employer may make towards you because of the pin you were wearing, that he/she would not make if you were not displaying support for the BLM. Pay attention to any comments/actions your employer makes disparaging BLM that would evidence your employer’s disapproval of the movement or any other remarks that are discriminatory in nature against one of the protected classes mentioned above.
MAKE A RECORD. It is important to document as many instances as possible, with as much detail as you can recall. Write down all offensive actions and comments. Keep a journal of the discriminatory conduct. If possible, jot this information down right away while the event is fresh in your memory. Your notes should include the date, time, location, and names of the people who witnessed the incident. Include a brief description of what happened, and any other details you will need to jog your memory of the incident in the future.
REPORT THE DISCRIMINATION/RETALIATION. If the conduct rises to the level of a demotion, or you believe the retaliatory conduct is detrimental to you, report it to your employer’s department of human resources. Make sure to do this in writing so that there is evidence of your report. This is particularly important, because your employer has a duty to remedy the situation and assure that the discrimination stops. And rest assured that your act of making a report to HR is protected; if you believe you are being retaliated against for making the report then you may also have a retaliation claim.
WHO CAN I CONTACT IF I BELIEVE MY EMPLOYER UNLAWFULLY DISCIPLINED ME FOR WEARING A BLM PIN?
- An employment law attorney. A lawyer who specializes in employment law will be able to listen to your account of what happened and give you insight as to whether you have legal protection under your specific circumstances.
- You may also contact the National Labor Relations Board, and report the conduct by requesting to speak with an investigator who can vet whether your case warrants the filing Unfair Labor Practice (ULP).
The National Labor Relations Act (NLRA)
- The full text of the National Labor Relations Act, Section 7 can be found on the NLRB website.
- The NLRB has also published a Basic Guide to the NLRA, which can be found here.
The NLRB FAQ Page
- Also on the NLRB website is a Frequently Asked Questions page, which is an excellent place to get information and additional resources about your situation. Chances are if you have a question, it is answered here!
The Equal Employment Opportunity Commission and Title VII
- As mentioned above, wearing a BLM pin could be protected activity under Title VII of the Civil Rights Act of 1964. For more information about the EEOC, or the Civil Rights Act, visit this page.