In a significant win for employers, the U.S. Court of Appeals for the Eighth Circuit reversed a National Labor Relations Board (NLRB) decision that found a national retailer violated federal labor law by prohibiting an employee from displaying "BLM" on the employee’s uniform. The court held that the NLRB failed to properly weigh the "special circumstances" justifying the retailer’s uniform policy, especially given the charged social and safety environment surrounding the George Floyd protests in Minneapolis.

Background: A Uniform Dispute Amid Civil Unrest

The case began when a Minneapolis area retail store employee wrote "BLM" on their uniform as a symbol of solidarity following the death of George Floyd. The employee was hired in August 2020, according to court records, three months after Floyd’s murder and during a time when the Black Lives Matter movement and its insignia became a prominent symbol for protesting police violence. Although the retailer encourages personalization of its uniforms, its dress code explicitly prohibits "causes or political messages unrelated to the workplace."

When managers instructed the employee to remove the BLM marking, citing policy and customer-facing concerns, the employee refused and ultimately resigned. The NLRB’s general counsel alleged that the company’s actions violated Sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA), which protect concerted activity for "mutual aid or protection."

An administrative law judge initially sided with the retailer, finding the display was not concerted activity tied to working conditions. But in 2024, a divided NLRB reversed that decision, holding that the employee’s refusal to remove the BLM marking was a "logical outgrowth" of employees' earlier group complaints about racial discrimination and vandalized Black History Month displays. The board found that the retailer’s enforcement of its policy unlawfully interfered with protected concerted activity.

The Eighth Circuit’s Ruling: Context Matters

The Eighth Circuit disagreed, emphasizing that the NLRB "improperly evaluated" the retailer’s business justifications and the "special circumstances" defense — an established exception allowing employers to restrict otherwise protected expression where necessary to protect customer relations, safety, or a company’s public image.

The Eighth Circuit decision highlighted the unique environment surrounding the store in 2020 and 2021,including nearby protests, property damage, and social division that led to temporary store closures. Given that backdrop, the court concluded that the retailer’s decision to bar politically charged messages on its uniform was reasonable and narrowly applied:

"These circumstances were unlike the more typical union organizing dispute… They were special circumstances that justify a prohibition on wearing this kind of message in a customer-facing job at this location during this period of time."

Importantly, the court noted that the retailer applied its policy evenly, prohibiting not only BLM but also "Blue Lives Matter" and similar political messages. Managers also offered alternative ways to express solidarity, such as diversity or "Respect for All" pins, demonstrating that the company’s policy targeted the medium, not the message.

The Eighth Circuit vacated the NLRB’s order and remanded the case, finding that the board failed to properly balance employee rights under Section 7 with the retailer’s legitimate business interests. The opinion is also notable for its implicit skepticism toward the NLRB’s recent tendency to expand "concerted activity" definitions, as the court stressed that context — not political or social motivations — must guide the analysis of workplace restrictions.

Key Takeaways for Employers

• Consistency matters: The retailer’s evenhanded enforcement of its dress code was crucial. Employers should apply appearance and messaging policies consistently across causes and viewpoints.
   
• Document business justifications: The court credited the retailer’s evidence of safety and customer relations risks. Employers should record the rationale behind restrictions in order to be able to show business justifications for their decisions.
   
• Context drives the outcome: What might be overbroad in ordinary times can be justified during periods when "special circumstances" might be at play. Prepare for a case-by-case analysis of each situation, and do not take a one-size-fits-all approach.
   
• Training: Train managers to not only enforce the policies consistently, but also to be able to distinguish between personal expression and group action tied to workplace conditions.

This decision reaffirms that employers retain discretion to maintain neutral, safety-conscious, and brand-consistent dress code policies, especially in customer-facing environments. While the board may revisit the case on remand, the Eighth Circuit’s decision shows that the NLRA does not require employers to turn their uniforms into platforms for political expression. Instead, the NLRA allows employers to set apolitical workplace rules for legitimate reasons like safety, as long as these policies are implemented in a non-discriminatory manner.

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