Federal Court's Decision Overturning Labor Board On Employee Political Speech Creates More Questions Than Answers

In a northeast suburb of Minneapolis, Minnesota, Home Depot employees alleged that the company permitted racially intolerant behavior by co-workers in the wake of George Floyd's murder in 2020, which occurred less than 7 miles away. They claimed that the company took insufficient action when one of their co-workers made discriminatory comments about customers and a display regarding Black History Month was vandalized in February 2021. During this time, several employees, including Antonio Morales, handwrote the letters "BLM," standing for "Black Lives Matter," on their company-issued orange aprons. A supervisor told Morales that the company's dress policy prohibited displaying causes or political messages unrelated to workplace matters and that Morales could not return to work wearing the BLM marking. Morales elected to resign but claimed that enforcing the policy to prohibit the marking amounted to constructive discharge.

Labor practitioners may recall these facts from Home Depot USA, Inc., 272 NLRB No. 25 (2024), where the National Labor Relations Board (NLRB or the Board) held that employees' display of BLM markings on their aprons was protected concerted activity because it was a "logical outgrowth" of their other protected concerted activities related to their employer's allegedly deficient response to racially discriminatory conduct. The Board did not find the employer's policy prohibiting political messaging facially unlawful but rather unlawful as applied to the employees advocating for workplace rights related to race.

The Board rejected the employer's argument that it had "special circumstances" to ban the purported protected concerted activity – citing (1) risk to its public image, (2) safety concerns and (3) concerns regarding employee dissension – finding instead that the total ban was not "narrowly tailored" to address the employer's concerns and that the employees' right to display the markings outweighed the employer's interests. The Board also rejected the employer's argument that requiring it to allow political messages on its signature orange aprons was compelled speech in violation of the First Amendment, reasoning that "accommodating the employee's message does not affect the [employer's] speech, because the [employer] is not speaking when employees personalize their aprons."

Home Depot petitioned the Eighth Circuit Court of Appeals to review the Board's decision, and on Nov. 6 the court decided that the company did not violate the law by refusing to let Morales wear the BLM marking at work. Home Depot U.S.A., Inc. v. NLRB, No. 24-1406 (8th Cir. Nov. 6, 2025). The court held that the Board misevaluated Home Depot's "special circumstances" defense, which allows employers to ban otherwise protected messages when they conflict with legitimate business interests. It considered the defense "in the context of this dispute at this location at this point in time" – near the site of George Floyd's murder and the unrest that erupted in its wake – reasoning that Home Depot's public image and safety concerns outweighed the employees' right to wear the markings.

The court dodged the more controversial First Amendment issue, but this decision may leave employers questioning how the context of future employee political speech will impact their ability to ban it. How far from the site of a politically significant event is far enough for employees' interest in speaking about it to outweigh potential safety or employer reputational risks? In the age of the Internet and near-instant dissemination of images and information around the globe, would the same BLM display in Los Angeles really have been less risky than in Minneapolis? Moreover, is this highly subjective standard consistent with the National Labor Relations Act's preemption of state laws to create a consistent labor framework nationwide? In light of the fast-evolving landscape, employers should consult counsel when drafting and enforcing dress code policies that might limit employee speech.

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