NLRB Holds Whole Foods Lawfully Prohibited Employees from Wearing ‘Black Lives Matter’ Apparel at Work

In a decision addressing the scope of Section 7 protection for social justice messaging, the National Labor Relations Board held that Whole Foods lawfully prohibited employees from wearing "Black Lives Matter" (BLM) apparel during working time.

The Board concluded that the General Counsel failed to establish that the employees' display of BLM messaging was undertaken to improve their terms and conditions of employment. Accordingly, the employees' conduct was not protected by the National Labor Relations Act (NLRA), and Whole Foods lawfully enforced its dress code policy and disciplined employees who refused to comply.

THE BOARD'S DECISION

Following the murder of George Floyd in 2020, employees at numerous Whole Foods stores wore BLM masks, shirts, pins, and other apparel while working. Pursuant to its dress code policy, Whole Foods directed employees to remove the messaging or leave work to change and, in some cases, disciplined employees who refused. The hearing was held in 2022, where the General Counsel argued that the employees' displays constituted protected concerted activity because they addressed racial issues affecting employees in the workplace. The Board rejected that argument.

Although the Board found that the employees acted concertedly, it concluded that the General Counsel failed to establish the required nexus between the BLM messaging and employees' wages, hours, working conditions, or other terms and conditions of employment. Instead, the Board found that the displays principally expressed support for the broader BLM movement rather than seeking changes to workplace conditions. Because the conduct was not protected under Section 7, Whole Foods lawfully prohibited the displays and disciplined employees who refused to comply.

The Whole Foods decision should also be read alongside the US Court of Appeals for the Eighth Circuit's decision in Home Depot USA v. NLRB, 158 F.4th 910 (8th Cir. 2025), which the Board cites. In Home Depot, the Eighth Circuit disagreed with the Board's analysis and vacated the Board's decision. Rather than deciding whether the employee's display of BLM messaging constituted protected activity, the court assumed that it was protected for purposes of its analysis and concluded that Home Depot had established "special circumstances" justifying enforcement of its dress code. In reaching that conclusion, the court emphasized Home Depot's legitimate interests in maintaining its customer-facing public image, protecting employee and customer safety, and avoiding workplace conflict arising from highly divisive public issues. The court remanded the case to the Board for further proceedings.

Unlike the Eighth Circuit, the Board in Whole Foods did not rely on a "special circumstances" analysis. Instead, it held that the employees' BLM displays were not protected concerted activity in the first instance because the required nexus to employees' terms and conditions of employment was lacking.

CURRENT STATE OF NLRB DRESS CODE LAW

Whole Foods does not alter the basic framework governing dress code policies under the NLRA. As a general rule, employees have a presumptive right under Section 7 to wear union insignia and other apparel relating to protected concerted activity while at work. Employers may restrict such displays only where they establish "special circumstances," such as maintaining employee safety and dissension, protecting product integrity, preserving a particular public image, or preventing operational disruption.

Current Board law is clear that employer restrictions on protected insignia are presumptively unlawful absent special circumstances.[1] However, employers remain free to maintain and enforce facially neutral dress code policies prohibiting nonwork-related slogans, logos, or messaging, provided those policies do not unlawfully restrict activity protected by Section 7.

Taken together, Home Depot and Whole Foods clarify an important threshold issue. Before reaching the "special circumstances" analysis, the employee's conduct must first constitute protected concerted activity under Section 7. If the conduct is not protected, an employer generally may enforce a facially neutral dress code without demonstrating special circumstances.

PRACTICAL GUIDANCE FOR EMPLOYERS

The decision offers the following practical takeaways for employers:

• Social or political messaging is not automatically protected: Employers should evaluate whether the message is objectively connected to employees' terms and conditions of employment rather than assuming that all concerted social justice messaging is protected.
• Maintain viewpoint-neutral dress code policies: Dress code policies should be applied consistently regardless of the viewpoint being expressed.
• Expressly preserve Section 7 rights: Dress code policies should continue to recognize employees' rights to wear union insignia and communicate other messages protected by Section 7 of the NLRA.

CONCLUSION

Whole Foods, together with the Eighth Circuit's decision in Home Depot, provides employers with meaningful support for enforcing neutrally applied dress code policies governing social or political messaging in the workplace. While the Eighth Circuit concluded that Home Depot established "special circumstances" justifying its policy, the Board in Whole Foods went a step further by holding that the employees' BLM displays were not protected by Section 7 because the General Counsel failed to establish the requisite connection between the displays and employees' terms and conditions of employment.

Employers should continue to enforce dress code policies carefully, as the analysis of whether social or political messaging relates to employees’ terms and conditions of employment is highly fact-specific.