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On November 6, 2025, the U.S. Court of Appeals for the Eighth Circuit issued a decision that bolsters employers' authority to restrict employees from displaying politically charged messages on their uniforms. This decision, and others like it, serve as a guide to help employers decide whether they may lawfully restrict employees' expression of political or union messaging in the workplace.
Home Depot U.S.A., Inc. v. NLRB – The “Special Circumstances” Exemption
In Home Depot v. NLRB, the Eighth Circuit reversed a decision from the National Labor Relations Board (NLRB) and held that Home Depot demonstrated that “special circumstances” supported its decision to direct an employee to remove “BLM” from their work uniform. The societal setting surrounding this case was vital to the court's decision.
In 2020, the plaintiff began working for a Home Depot store in the Minneapolis suburb of New Brighton, Minnesota. Approximately three months prior, George Floyd was killed while in the custody of Minneapolis police officers a mere seven miles away from this store. In response to this event, the plaintiff and other employees wrote BLM on their orange, Home Depot-issued aprons as a symbol of solidarity against prejudice and racism. Notably, Home Depot encouraged employees to personalize their aprons with things like pins and written messages, but its dress code expressly prohibited promoting or displaying causes or political messages unrelated to workplace matters.
Home Depot management demanded that the plaintiff remove the BLM message from his apron. Rather than comply, the plaintiff resigned and filed an unfair labor practice charge with the NLRB, which ultimately rendered a decision against Home Depot. However, the Eighth Circuit reversed the NLRB's decision under the “special circumstances” doctrine, which allows employers to restrict the display of otherwise protected messages if the employer cites sufficient business justification for its actions.
The court emphasized that “context matters.” Given the circumstances of this case, including the proximity to the site of George Floyd's death combined with “extraordinarily high” societal tension and unrest, Home Depot made a business decision “to preserve the store's apolitical face to customers and safeguard employee safety in a risk-filled environment.” These special circumstances justified Home Depot's decision to require the plaintiff to remove the BLM message from their apron.
Other Considerations – The Tesla Standard and Beyond
As illustrated in the Home Depot decision, personal displays on employee uniforms can snowball into contentious workplace disputes. This issue commonly comes up in the context of displaying union insignia.
In Tesla, Inc. v. NLRB, the U.S. Court of Appeals for the Fifth Circuit evaluated—and rejected—the NLRB's new rule that declared that all uniform and dress codes are presumptively unlawful, subject to the special circumstances exception described above.
Tesla required employees to wear black shirts with a Tesla name and logo. However, as part of union organizing efforts, some employees began wearing black shirts with the union logo. Tesla did not allow this but permitted employees to affix union stickers to their work uniform. An unfair labor charge ensued, and the NLRB concluded that “when an employer interferes in any way with its employees' right to display union insignia, the employer must prove special circumstances that justify its interference.”
The Fifth Circuit rejected this rule, explaining that the NLRB exceeded its statutory authority. Instead, the NLRB must balance the competing interests of employers and employees before declaring such a policy unlawful. Other federal courts are considering similar challenges.
Considerations for Employers
Employers can protect themselves by carefully considering any actions that prohibit or restrict employee messaging that may constitute protected activity. If employers deem it necessary to take such actions, they should be prepared to defend their decision by citing legitimate and substantial business justifications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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