The United States Court of Appeals for the Eighth Circuit recently issued an opinion reversing a National Labor Relations Board (NLRB) ruling that held that the National Labor Relations Act (NLRA) precluded Home Depot from prohibiting employees at a Minnesota store from wearing Black Lives Matter ( "BLM") insignia on their orange Home Depot aprons. As we previously discussed here , this was one of several cases working their way through the NLRB involving the question of whether BLM messaging at the workplace qualifies as protected concerted activity under the Act. This is the first such case to be addressed by a Circuit Court on appeal from a Board ruling.
- Background
Home Depot's dress code encouraged employees to customize their orange aprons with "personalized pins, illustrations, and written messages," but also noted that the apron is "the brand of the Company" and therefore, not an appropriate place to promote "causes or political messages unrelated to the workplace."
Following the death of George Floyd, employees at Home Depot's New Brighton, Minnesota store began donning Black Lives Matter insignia on their aprons. The store manager told the employees that this violated the company's dress code and directed them to remove the insignia. An employee eventually filed an unfair labor practice charge with the NLRB.
After an Administrative Law Judge held that the employees' expression of support for BLM was not protected concerted activity under the Act because there was no nexus to the employees' goals or interests as employees, the Board reversed. In a fact-intensive ruling, the Board found that the employees' expression of support for BLM was a "logical outgrowth" of their previously-expressed complaints and concerns about racial discrimination at the New Brighton store. The Board rejected Home Depot's argument that, even if wearing the BLM insignia was a form of protected concerted activity, the "special circumstances" exception should apply. The "special circumstances" exception allows an employer to restrict activity that is otherwise protected by the Act where permitting such activity would "jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan[.]" The Board found that there were no such circumstances present in this case that would justify Home Depot's restriction on employee expressions of support for BLM.
- The Eighth Circuit's Decision
Home Depot appealed the Board's decision to the Eighth Circuit in Home Depot U.S.A. v. NLRB. The court did not address Home Depot's argument that the BLM insignia was not protected concerted activity under the Act. Instead, the court held that, even if the expression of support for BLM on the work apron was considered protected concerted activity, the "special circumstances" exception was satisfied and justified Home Depot's enforcement of its dress code.
Home Depot argued that its dress code policy was justified by special circumstances because it believed the display "would harm its relationship with customers and its public image, jeopardized employee safety, and exacerbated employee dissension."
The Eighth Circuit agreed, noting that Home Depot did not categorically prevent employees from supporting racial justice. Rather, the dress code policy simply demanded that employees utilize "less politically charged messaging" in expressing support for the causes they care about.
Most importantly, the Eighth Circuit emphasized the significance of context in conducting the "special circumstances" inquiry. The panel cited the protests, riots and looting (including at another Home Depot location nearby) that were occurring around the time that Home Depot restricted the wearing of BLM insignia as supporting the public image and safety elements of the special circumstances exception. The court also noted that the store told employees it would allow other forms of expressions of opposition to racial discrimination. The court concluded that Home Depot's restriction on BLM insignia "was a business decision made to preserve the store's apolitical face to customers and safeguard employee safety in a risk-filled environment." As such, the Eighth Circuit vacated the NLRB's ruling and remanded the case for further proceedings.
Takeaways
Notably, the Eighth Circuit's opinion is only binding on employers within the Eighth Circuit; the NLRB's underlying decision remains applicable everywhere outside of that circuit. However, the court's ruling is significant in that it indicates continued judicial scrutiny of some of the Board's more expansive rulings of recent years. In this instance, the court made clear that while employees still enjoy a long-established right, under Section 7 of the NLRA, to wear attire bearing messaging that speaks to their terms and conditions of employment, employees may be justified in restricting that right where "special circumstances" exist. That determination will depend on the context and unique facts of each situation, so employers should be judicious and obtain guidance from counsel before assuming the "special circumstances" exception applies. But the Eighth Circuit's ruling does offer some general guidance, as the limited nature of Home Depot's restrictions (i.e., only as to "BLM" insignia on the aprons without prohibiting other forms of employee expressions of support for combating racism and racial discrimination) and the even-handed application of its policy (restricting other politically-charged messages, such as "Blue Lives Matter") were specifically cited by the court as supporting application of the "special circumstances" exception.
If you have any questions regarding this case and its potential impact on your operations, please reach out to the authors of this post or your regular Saul Ewing attorney.
