Hunton Employment & Labor Perspectives

On November 6, 2025, the Eighth Circuit issued its decision in Home Depot U.S.A. v. NLRB, reaffirming the right of employers to prohibit employees (particularly those in customer-facing roles) from wearing politically-charged insignia on their work uniforms. 

The initial dispute arose at a Home Depot store in Brighton, Minnesota. In the months following the murder of George Floyd, an employee started wearing “BLM” (Black Lives Matter) letters on his work uniform.  Though Home Depot allowed and encouraged employees to customize their work aprons with personalized messages, Home Depot’s dress code prohibited employees from displaying “political messages unrelated to the workplace.” As such, the employee was asked to remove the “BLM” letters from his apron, and he later resigned when Home Depot refused to allow him to return to work.

Following his resignation, the employee filed an unfair labor practice charge with the National Labor Relations Board (“Board”), alleging that Home Depot’s dress code policy violated his rights under the National Labor Relations Act (“NLRA”).  The Board sided with the employee, finding that the employee had engaged in protected concerted activity by displaying the “BLM” letters on his apron.  In doing so, the Board reasoned that the employee’s messaging was commentary on the terms and conditions of his employment because it was a “logical outgrowth” of prior complaints about racial discrimination and other workplace conditions at the employee’s store, including the prior vandalization of a Black History Month poster in the employee breakroom.

On appeal, the Eighth Circuit vacated the Board’s ruling.  The Court found that Home Depot had articulated sufficient business reasons for its dress code policy, including the risks to its public-image and the increased risk to employee safety by allowing employees to display political messages on their aprons.  The Court gave particular attention to the surrounding circumstances, writing: “Context matters. The activity in dispute was not a display at a random location in the United States; it was not a normal moment in time; and it was not a generic message for equal rights or employee protection . . . [The employee’s] BLM message was broadcast only a few miles from the site of George Floyd’s murder.”

Though the Eighth Circuit declined to directly decide whether the employee’s messaging constituted protected activity under the NLRA—a contested issue in the case—the Eighth Circuit’s decision dealt a major blow to the Board’s recent attempts to stretch the NLRA to reach employees who participate in political activities.  At a minimum, the Eighth Circuit’s decision made clear that the “special circumstances” doctrine is alive and well, and that employers are permitted to enact rules that arguably infringe on employees’ Section 7 rights when those rules are supported by sufficient business justifications.

Hunton Andrews Kurth LLP authored an amicus brief in the case in support of Home Depot on behalf of the Coalition for a Democratic Workplace and HR Policy Association as amici curiae.