The world of work is evolving rapidly, challenging old norms about the lines between our professional and personal lives.
Collisions pitting employees’ values against those of their employers are inevitable. If not properly managed, they can put a company—and its in-house lawyers—in a tough spot: defending a position that they really don’t want to defend.
Just ask Whole Foods.
In the aftermath of George Floyd’s murder, Amazon founder Jeff Bezos posted a number of statements supporting the Black Lives Matter movement. At about the same time, store managers at Amazon-owned Whole Foods were sending employees home for wearing BLM masks to work. Whole Foods employees in six states racked up multiple attendance infractions for enforced absences over the following months and were eventually fired.
That caught the attention of the National Labor Relations Board, which is accusing the grocery retailer of violating federal workplace law.
Bezos may have supported BLM, but Amazon’s attorney Michael Ferrell called the movement “controversial” in the ensuing litigation. Ferrell also noted that former President Donald Trump described the movement as “a symbol of hate.” If allowed to wear these masks, Ferrell questioned, what would happen if workers showed up wearing Confederate flag masks?
It remains to be seen whether the NLRB’s unfair labor practice charges against Whole Foods will stick. In June, an administrative judge sided with Home Depot in a similar case challenging the company’s decision to ban store employees from wearing BLM messages on their aprons.
Still, Whole Foods is facing more legal bills to fight the case, as well as a possible hit to employee morale and questions about where the company stands on a hot button social issue.
How do you balance employees’ varied and passionate desires to express themselves at work against a fear of offending customers and the business need for uniformity? It’s a huge challenge, for sure, but certainly you don’t want to wind up in court fighting Black Lives Matter.
A general counsel’s job isn’t just to win in court. It’s also to reduce overall risk, and to be a leader (along with the CEO and head of HR) in building a culture of trust with employees that lays the foundation for working out problems collaboratively.
In other words, sometimes you have to find a middle ground. Here’s how.
Hold a meeting with employees and explain the importance of providing a consistent customer experience. That includes ensuring consistent look and feel branding in how your workers present themselves to customers on the job.
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It’s also important to acknowledge that there can be extraordinary situations where the business has to take a stand on broader social issues. Pledge that the company will respect the desires of its diverse employee base to speak up at work in those situations, in a manner that’s consistent with the company’s values.
For Whole Foods, this was such a time.
The company could have provided all workers with an array of approved masks featuring different slogans—“Black Lives Matter,” “I Stand for Peace,” “Justice for All,” “Love”—or no slogan at all, and let employees choose which mask to wear. Some masks might offend some customers, I suppose. Bezos said it best himself: That’s “the kind of customer I’m happy to lose.”
Working out a solution like this doesn’t mean that you have to allow employees to wear Confederate flag masks. You should maintain your role as an employer to make final calls about what sort of messages are consistent with the company’s brand.
Amazon might win this legal battle. Employers have wide latitude in managing how employees dress in customer facing businesses. But the company will lose the war, one they should have never tried to fight.
Rob Chesnut is the former general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor and later oversaw US legal operations at eBay. The author of “Intentional Integrity: How Smart Companies Can Lead an Ethical Revolution,” Rob consults on legal and ethical issues.
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