Political speech in the workplace has continued to be a hot topic since the 2024 elections. Political speech can be defined as an expression of political views, affiliation, or activities within a professional setting. One recent poll showed that a quarter of businesses have disciplined employees for their political speech. A recent case from the U.S. 8th Circuit Court of Appeals (whose rulings apply to employers in Arkansas and Missouri) offers guidance on how employers may protect legitimate business interests when addressing workplace political speech.
BLM at Work?
Home Depot directed an employee at one of its home improvement stores in Minnesota to remove the written notation “BLM”—a reference to the racial justice movement Black Lives Matter—from their orange uniform apron. The employee filed an unfair labor practice charge with the National Labor Relations Board (NLRB), claiming they had engaged in concerted, protected activity under the National Labor Relations Act (NLRA) and had been constructively discharged for refusal to remove the BLM reference.
The display on the uniform occurred in February 2021, approximately nine months after George Floyd’s murder, and the store at which the employee worked was less than seven miles from the site where Floyd was arrested by Minneapolis police officers. The Black Lives Movement and its insignia became a prominent symbol in the area for protesting police violence. Several employees of the Home Depot store put “BLM” on their aprons. The employee in the case testified they wrote “BLM” in black marker on the front of the orange apron to be “approachable” and “as a symbol of solidarity” against “prejudice and racism.”
Home Depot’s dress code policy permitted employees to customize their aprons with personalized pins, illustrations, and written messages that would appear along with the Home Depot insignia. The dress code policy prohibited the display of “causes or political messages unrelated to workplace matters.”
The employee’s BLM message was noticed by a supervisor during a meeting where the employee and his supervisors were discussing the vandalization of a Black History Month display in the employee breakroom. The supervisors discussed with the employee how the BLM message violated the dress code policy and suggested alternatives like wearing a “respect for all” pin.
At a meeting with a district manager and HR the next day, the employee said they put the message on the apron to show their support for black people and people of color. The employee was told to go home and not return until they found another way to express these beliefs. The employee refused to remove the BLM lettering, stating to supervisors that they were “willing to be fired over this” and it would make “a great example” and was “going to make the biggest impact” in the store. The employee resigned the next day. Home Depot later instructed other employees that its dress code policy required the BLM lettering to be removed from their aprons. The company had previously barred employees from displaying “Blue Lives Matter” and “Thin Blue Line” messages on their aprons.
Section 7 of the NLRA provides employees with the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 applies to both unionized and nonunionized private-sector workplaces. The employee’s charge alleged their display of BLM on the uniform apron was protected activity under Section 7 and that Home Depot’s direction to remove the lettering or stop working interfered with their exercise of Section 7 rights, which is prohibited under Section 8(a)(1).
NLRB Rejects Retailer’s Defense as ‘Speculative’
Home Depot defended against the charge under the “special circumstances” doctrine, which permits employers to bar otherwise protected messages when they conflict with legitimate business interests. The NLRB found that the employee engaged in protected Section 7 activity and Home Depot violated Section 8(a)(1) by directing the employee to remove BLM from the apron, enforcing its dress code to prohibit the display of this message and constructively discharging the employee by conditioning his continued employment on compliance with the dress code. The NLRB found the employee’s refusal to remove the lettering protected concerted activity.
The NLRB rejected Home Depot’s special circumstances defense, which was based on the argument that the BLM apron display could jeopardize employee safety, exacerbate employee dissension, and unreasonably interfere with the company’s established public image. The NLRB found Home Depot’s defense was “speculative.” Home Depot was ordered to cease enforcing the dress code policy to prohibit BLM messages and to reinstate the employee with back pay. Home Depot appealed the NLRB decision to the 8th Circuit.
Appeals Court Cites ‘Special Circumstances’ in Reversing NLRB
The 8th Circuit reversed the NLRB, finding the Board did not correctly analyze Home Depot’s special circumstances defense, and sent the case back to the Board for further findings consistent with the court’s decision. The 8th Circuit noted that Section 7 protections do not prevent an employer from enforcing reasonable rules covering employee conduct on company time because “working time is for work.” The court stated that a Section 8(a)(1) violation occurs only when the interference with Section 7 rights outweighs the business justification for an employer’s actions.
Also of importance was that the court recognized that the special circumstances defense applies to a business’s attempt to protect its public image. The court found that the NLRB failed to properly consider Home Depot’s enforcement of its dress code policy to “the context of this dispute at this location at this point in time.” The court stated that Home Depot’s restriction was specific to the mass expression of a specific controversial message associated “rightly or wrongly” with a political movement that advanced multiple policy proposals. Home Depot did not attempt to prohibit all apron messages and suggested alternatives that were less politically charged. The court stated, “it is for the employer, not the Board, to determine whether personalization will be allowed because it is apolitical, appropriately demonstrates the company’s values, or is related to the workplace.” The court found that the NLRB had “effectively prohibit(ed) an employer that provides equal alternatives and has legitimate concerns about customer perception from exercising reasonable oversight of customer-facing interactions.”
The court also highlighted the context of the BLM apron message at this store a few miles from the site of George Floyd’s murder and only a few months after that incident at a time when community tensions were “extraordinarily high,” giving rise to legitimate safety concerns. The court found that Home Depot’s application of its dress code “was a business decision made to preserve the store’s apolitical face to customers and safeguard employee safety in a risk-filled environment.” Home Depot U.S.A., Inc. v. NLRB, Nos. 24-1406 & 24-1513 (8th Cir., Nov. 6, 2025).
Lessons Learned from Home Depot’s Approach
This decision demonstrates how a measured and engaged approach with employees on political speech issues can place an employer in a better position to defend its policies and employment actions. Home Depot had documented its legitimate business needs—including incidents that implicated employee safety at the store where the employee worked—as well as how it worked to maintain a consistent public image. The company also was consistent in its application of its dress code to apron messages that invoked other political messages. The store managers and HR representatives also met with the employee multiple times to discuss the apron message, reasons why the message was outside of the permitted dress code, and other alternatives for the employee to express their views on their apron. Home Depot’s approach to this difficult issue should serve as guidance to other employers about how to consistently maintain legitimate business interests, even in the face of difficult political speech issues.
Tony Puckett is an attorney in the Oklahoma City office of McAfee & Taft and can be contacted at tony.puckett@mcafeetaft.com.