The Eighth Circuit Court of Appeals recently sided with Home Depot in a dispute over whether an employee’s “Black Lives Matter” message on a work apron was protected under the National Labor Relations Act (NLRA).
The Facts
A Minnesota Home Depot worker wrote “BLM” on their orange apron after coworkers raised concerns about racial issues at the store. Management cited the company’s dress code, which prohibits political or social messages unrelated to work, and told the employee to remove it. The employee refused and resigned, later filing an unfair labor practice charge. The NLRB ruled that the company violated the NLRA, finding the employee’s display was “protected concerted activity.”
The Court’s Decision
The Eighth Circuit disagreed, holding that Home Depot had “special circumstances” justifying enforcement of its dress-code policy. The store was near the site of civil unrest following George Floyd’s death, and the Court accepted that Home Depot could lawfully restrict potentially divisive messaging to protect employee safety, maintain order, and preserve its public image based on a “reasonable belief” as opposed to direct evidence. The case was sent back to the NLRB for further review under that standard.
Why It Matters in California
Although not binding here, the decision reinforces that employers may limit political or social messages in the workplace—if they can show a legitimate business justification and apply policies consistently. In California, where employee speech rights are broad, context and consistency are key. Employers should:
- Review dress-code or uniform policies for clarity.
- Document business reasons for any restrictions (customer perception, safety, cohesion).
- Train managers to distinguish between personal expression and group action tied to workplace conditions.
Bottom Line
Neutral dress-code rules are defensible if enforced fairly and grounded in legitimate operational needs—but employers must tread carefully when the messaging overlaps with workplace concerns or concerted activity. If you have questions on this topic, please feel free to reach out to the author or CDF’s Traditional Labor Practice Group.
