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March 11, 2024
Update: In November 2025, the United States Court of Appeals for the Eighth Circuit vacated and remanded the NLRB’s decision discussed below that found an employee’s refusal to remove a Black Lives Matter marking from a work uniform to be a protected activity under the National Labor Relations Act. The court concluded that Home Depot demonstrated narrow special circumstances and business justification defenses to support enforcement of its dress code rule barring the marking. See Home Depot U.S.A., Inc. v. NLRB, No. 24-1406, 2025 U.S. App. LEXIS 29091 (8th Cir. Nov. 6, 2025).
The National Labor Relations Board (NLRB) recently held that Home Depot (a non-union employer) could not require employees to remove Black Lives Matter, or BLM, insignia from their work uniforms because the insignia was a “logical outgrowth” of earlier group protests about racial discrimination in the workplace. Home Depot USA, Inc. and Antonio Morales, Jr., Case No. 18-CA-273796 (Feb. 21, 2024).
The Facts of the Case
Morales, who identifies as Hispanic, Mexican, and a person of color, worked for Home Depot as a sales specialist in the flooring department from August 2020 until February 2021. Another flooring department employee allegedly subjected customers and employees of color, including Morales, to racially discriminatory behavior, which persisted throughout Morales’s employment. On numerous occasions, Morales discussed this behavior with their[1] coworkers and coworkers discussed it among themselves. On at least a monthly basis, Morales and their coworkers complained to supervisors about the conduct. Despite Home Depot’s performance counseling of the offending employee, the racially discriminatory behavior continued.
In February 2021, at Home Depot’s request, several employees, including Morales, prepared posters and flash cards for the break room to honor prominent figures in Black history in observance of Black History Month. The materials were vandalized twice. Though Home Depot management responded to the vandalism, many employees, including Morales, found that Home Depot’s response fell short. After consultation with coworkers, Morales prepared an email to management calling for a storewide discussion about racism “to help our fellow coworkers of color feel safer about the environment they work in.”
Later that same afternoon, members of management met with Morales to discuss the email. Though the managers agreed with much of the email’s content, they admonished Morales for sending it, believing that the vandalism issue should be left to management to address. Management then began discussing the BLM insignia that Morales wore on their apron – an insignia that Morales had worn continuously for the previous five months. Management contended that the insignia was contrary to the dress code and apron policy’s ban on “displaying causes or political messages unrelated to workplace matters.” Management advised that Morales could not return to work until they removed the BLM insignia.
The following day, members of management met with Morales via videoconference. The beginning of the meeting involved management’s efforts to collect information regarding the alleged racially discriminatory conduct against Morales and others. However, halfway through the meeting, the conversation turned to the BLM insignia on Morales’s apron. Management, again, stated that Morales could not return to work unless they removed the BLM insignia from their apron. Morales refused to remove the insignia, stating that there appeared to be no better way to show their support to people of color and referring to the last six months, during which Morales and others reported workplace concerns to management and nothing was done – i.e., the BLM insignia related to workplace matters, not to the George Floyd murder (commonly associated with the BLM insignia) or any other cause or political message outside of the workplace. Morales resigned from their employment the next day.
The NLRB’s Analysis
Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” The NLRB found that Morales’s refusal to remove the BLM insignia from their work apron was protected concerted activity. It related to prior employee protests about racial discrimination in the workplace (concerted) and the racial discrimination involved employees’ working conditions (mutual aid and protection).
When an employer interferes with an employee’s Section 7 rights, it may justify that interference by demonstrating special circumstances – here, that its interest in banning the BLM insignia outweighs Morales’s Section 7 right to wear it. Special circumstances may include, among other things, situations where display of insignia might 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, through appearance rules for its employees. Home Depot and Morales, Case No. 18-CA-273796, at 11. An employer also must show that its rule is narrowly tailored to the special circumstances justifying its maintenance. Id. Home Depot argued that its ban on BLM insignia was justified because such insignia interferes with its public image, jeopardizes employee safety, and exacerbates employee dissension. The NLRB determined that the record did not support those contentions. The NLRB further rejected Home Depot’s contentions that requiring it to permit the BLM insignia violated the First Amendment or federal trademark laws.
Ultimately, the NLRB determined that Home Depot violated the National Labor Relations Act by directing Morales to remove the BLM insignia, by applying its dress code and apron policy to prohibit Morales from wearing the BLM insignia, and by constructively discharging Morales for declining to remove it.
Employer Takeaways
Unionized or not, employees have rights under Section 7 of the National Labor Relations Act with which employers cannot interfere. The “special circumstances” bar to just interference is high and narrow. Take employee complaints seriously and respond to substantiated allegations accordingly.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] Morales uses the pronouns “they” and “their,” and this article refers to Morales accordingly.
