Protected Speech or Disruptive Workplace?
11.3.2026
Two recent developments together reshape employer rights regarding employee political and social messaging in the workplace under Section 7 of the National Labor Relations Act
The Decisions
In Home Depot USA, Inc.,[1] the National Labor Relations Board held 3-1 that Home Depot violated Sections 7 and 8(a)(1)[2] of the National Labor Relations Act by prohibiting a customer-facing employee at a Minnesota store from wearing a “Black Lives Matter” logo on the employee’s work apron. Although Home Depot allowed and even encouraged employees to personalize their aprons, the company’s dress code prohibited “political messages unrelated to the workplace.” In the months following George Floyd’s murder, the store – located less than seven miles from where Floyd was killed at the hands of the police – informed employees that BLM markings, as well as opposing-view insignias such as “Blue Lives Matter” and “Thin Blue Line” symbols, were impermissible displays of political messages unrelated to workplace matters. One employee refused to remove the BLM lettering, resigned when directed to do so and then filed an unfair labor practice charge.
The board found the display was protected concerted activity because it was a “logical outgrowth” of prior group complaints about racial discrimination at that store even though the employee had begun wearing the BLM insignia before those complaints were made. The board reasoned that his refusal to remove it occurred after the complaints, which was sufficient. The board also rejected Home Depot’s “special circumstances” defense, finding that Home Depot had not put forth sufficient evidence to justify the ban, particularly because the BLM messaging was not materially different from other political and personal displays the company permitted.
On petition for review, the Eighth Circuit vacated and remanded.[3] The court found that Home Depot had sufficient business justifications, including risks to its public image and employee safety, for restricting the display of politically charged messages on work aprons. Critically, the Eighth Circuit emphasized that context matters: The BLM message was displayed only a few miles from where Floyd was murdered by arresting police, during a period of extraordinary community tension and civil unrest that at times closed the store. Employees reflected that division: Some coworkers responded with “Thin Blue Line” and “Blue Lives Matter” messages and the employee’s insistence on wearing the BLM message posed a clear risk to customer and employee safety. The court also held that it is not the province of the board or the courts to substitute their judgment for an employer’s reasonable exercise of business judgment, noting that the employee “was allowed, indeed encouraged, to wear other kinds of personalized racial equality pins.”
A key fact that the Eighth Circuit credited was Home Depot’s neutral, even-handed enforcement; specifically, Home Depot banned Black Lives Matter, Blue Lives Matter and Thin Blue Line displays alike. This equal application across viewpoints was central to the court’s conclusion that the restriction was a reasonable exercise of business judgment.
On July 31, 2026, in Whole Foods Market, Inc.,[4] the National Labor Relations Board unanimously held that Whole Foods did not violate the NLRA by prohibiting employees from wearing Black Lives Matter messages at work. The board found that the employees’ BLM displays were not sufficiently connected to their working conditions to qualify as protected concerted activity under Section 7. Unlike Home Depot, where the employee’s display was tied to concrete complaints about racial discrimination, the Whole Foods employees adopted BLM messaging in support of the national protests without any discernible connection to specific workplace incidents or conditions. The board’s unanimous decision, including the lone Biden NLRB-era Democratic holdover member who had voted with the majority in Home Depot, is particularly telling.
The Two-Part Framework
Together, these decisions provide employers with a practical two-part framework:
- Threshold Section 7 Analysis. First, determine whether the employee display is connected to employees’ actual working conditions, such as wages, hours, workplace complaints or other terms and conditions of employment. Under Whole Foods, general social or political advocacy alone is not The subject matter is not determinative. Rather, what matters is whether there is a concrete workplace nexus.
- Special Circumstances Defense. Second, even if Section 7 applies, the Eighth Circuit’s Home Depot decision confirms that employers may restrict protected displays when supported by sufficient business justifications, including risks to public image or employee safety. This defense carries the greatest practical force for employers with public-facing workforces such as retail, food service, hospitality and similar industries, where the employer’s interest in controlling its image and managing customer interactions provides an inherently strong business justification. Employers must apply any restrictions neutrally and evenhandedly across all viewpoints.
Suggested Actions
- Investigate and document the origins of any workplace display. When employees begin wearing social or political messaging, promptly determine whether the display has a stated or discernible connection to specific workplace conditions or employee complaints. Contemporaneous documentation is critical.
- Maintain neutral, even-handed enforcement. Perhaps the single most important lesson from the Eighth Circuit’s Home Depot decision is that the restriction succeeded because it applied equally to all politically charged messaging: BLM, Blue Lives Matter and Thin Blue Line alike. If you restrict one side of a debate, you must restrict all sides. Selective enforcement can turn a defensible policy into an unfair labor practice.
- Assess the factual record before acting. The determinative question is whether the display is a logical outgrowth of concrete workplace concerns. Where there is no such evidence, the employer has a strong basis for enforcement.
- Preserve evidence of business justification. Even where the threshold Section 7 question favors the employer, documenting special circumstances, including safety risks, customer disruption and employee dissension, provides an independent basis for the restriction.
Issues Still To Be Resolved
The Eighth Circuit declined to address the threshold question of whether the employee’s conduct was protected concerted activity under Section 7 of the NLRA, whether Home Depot’s First Amendment rights were implicated and whether, following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo,[5] which overruled Chevron deference, the board’s interpretations should receive less judicial deference. On the concerted activity question in particular, the Home Depot board’s application of the “logical outgrowth” doctrine – treating a general social justice display as an extension of prior workplace discrimination complaints – was criticized by the then-lone dissenting Republican member as an unwarranted extension of established board precedent, and the Whole Foods board’s focus on a concrete workplace nexus suggests the current board is unlikely to follow that path again. These issues will continue to be litigated.
Howard Lavin is a partner at Thompson Coburn LLP, where he advises employers across the full spectrum of labor and employment law. He partners with human resource professionals and business leaders on day-to-day workplace compliance, internal investigations, discrimination and harassment claims, and wage and hour matters. He also counsels clients on workforce reductions and the employment aspects of mergers and acquisitions, including WARN Act compliance.
This article appears in a forthcoming issue of One on One, the publication of the General Practice Section. For more information, visit nysba.org/gen.
Endnotes:
[1] 373 NLRB No. 25 (2024).
[2] Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees who are exercising their Section 7 rights.
[3] Home Depot U.S.A., Inc. v. NLRB, 140 F.4th 971 (8th Cir. 2025).
[4] 375 NLRB No. 20 (2026).
[5] 603 U.S. 369 (2024).
