Federal Court Rebukes NLRB on Political Protests in the Workplace

The Eighth Circuit Court of Appeals overturned a Biden-era National Labor Relations Board ruling that a company’s termination of an employee who refused to stop displaying a Black Lives Matter pin on their company uniform in violation of company policy was illegal under federal labor law.  

Background: In early 2024, the Biden-era NLRB ruled that The Home Depot unlawfully dismissed a worker for having a Black Lives Matter (BLM) slogan on a uniform, which violated a company policy allowing only company-issued buttons or pins. The company appealed the decision to the Eighth Circuit Court of Appeals.  

• Under federal labor law, employees are protected from employer discipline for engaging in activities with other employees to protest terms and conditions of their employment, known as “protected concerted activity.”  

• Generally, there must be a connection between the activity and the employees’ workplace.  

• However, the Biden Board – in this case and others – took an increasingly broad view on the scope of protected activity such that political and social protests could be protected under federal labor law.  

CHRO Association amicus brief: The Association filed an amicus brief with the Eighth Circuit urging it to overturn the Board’s decision, arguing that the employee’s activity was neither concerted nor protected under federal labor law.  

Eighth Circuit decision: The court found that the employee’s termination was a justifiable “business decision made to preserve the store’s apolitical face to customers and safeguard employee safety in a risk-filled environment.”  

• Notably, the court declined to rule on whether displaying the BLM pin was protected concerted activity – or on the broader issue of to what extent such political or social protests are protected by federal labor law. 

• Instead, the court found that The Home Depot showed sufficient “special circumstances” – to preserve an apolitical face to customers and preserve store safety at a time of social and political unrest in the area. This justified its prohibition on wearing BLM pins and its subsequent termination of the employee for violating its policy.  

Still a grey area: The decision affirms that employers can take certain reasonable steps towards maintaining workplace civility and safety. However, the central issue – to what extent political and/or social protests are protected by federal labor law – remains undecided. This decision therefore continues to leave the door open for future Boards (or court decisions) to draw those lines, one way or another.  

Looking ahead:  

• A Republican-majority Board under the current Trump administration is likely to adopt a much narrower (and traditional) view of protected concerted activity, under which only actions tied clearly and directly to workplace conditions are considered protected.  

• However, the Board is still operating without quorum, with only one member (a Democrat).  

• Despite pending Republican nominees for a Board seat and the Office of General Counsel, respectively, it is increasingly likely that the Board will remain without a Republican majority (and without quorum) until at least 2026.  

• Time is already running extremely short for any future Republican-majority Board to undo Biden-era Board decisions, including on issues such as protected concerted activity (like in the above case) and card check elections (Cemex).  

• Appellate court decisions such as the one above may be employers’ best bet for undoing Biden Board decisions.