Where Employers Can and Can’t Draw the Line on Political Speech (In The Workplace 2026)

This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2026, authored by law clerk Wynne James. The series was originally featured in Arkansas Business.

Amid heightened political tension, employers are becoming increasingly concerned about how to navigate discussions in the workplace about political and social issues. A recent U.S. Eighth Circuit Court of Appeals decision illustrates just how complicated these situations can be.  

The conflict in Home Depot USA, Inc. v. NLRB began in the summer of 2020 when George Floyd was killed by Minneapolis police, and a group of employees at a nearby Home Depot wrote “BLM” on their uniform aprons. Home Depot’s dress code encouraged employees to personalize their uniform aprons but prohibited them from displaying political, religious or harassing messaging unrelated to workplace matters. After several incidents of racially motivated vandalism at the store, management asked the employees to remove “BLM” from their uniforms. One employee refused to remove the BLM lettering on his apron, stating that “willing to be fired over this” would be a “a great example” and was “going to make the biggest impact” in the store. He was sent home for refusing to comply with the dress code and ultimately resigned. 

Shortly after resigning, the employee filed an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRB is the federal agency tasked with enforcing the National Labor Relations Act, which protects the collective bargaining and organizing rights of private sector employees, whether they are unionized or not. Specifically, Section 7 of the Act protects employees engaging in “concerted activities” for mutual aid or protection (e.g., discussing working conditions or wages).  

The board found in favor of the employee, holding that the employee’s refusal to remove the message was protected and concerted activity within the meaning of Section 7. “An individual employee’s action is ‘concerted’ within the meaning of Section 7 if it is a ‘logical outgrowth’ of employees’ prior or ongoing protected concerted activity.”

Because other employees displayed “BLM” on their aprons during a time when they were raising concerns about racial mistreatment in the workplace, store managers failed to address multiple incidents of racist vandalism. And because managers instructed the employee to remove the BLM marking during meetings at which he voiced group concerns about discriminatory working conditions, the board found there was a “direct relationship” between the refusal to remove the BLM marking and labor organizing. 

But the Eighth Circuit reversed the board’s decision, holding that although the employee’s conduct might have been protected by Section 7, Home Depot faced “special circumstances” that justified enforcing the dress code as it did. The “special circumstances” defense proves a narrow exception to Section 7 rights, which allows an employer to act in ways that would otherwise be unlawful under the NLRA.

The Eighth Circuit determined that the store’s proximity to the George Floyd killing (seven miles) and subsequent BLM movement activity was a sufficient “special circumstance” because management reasonably determined that allowing the messaging would pose a risk to employee and customer safety. The court wrote: “Context matters. The activity in dispute was not a display at a random location in the United States; it was not at a normal moment in time; and it was not a generic message for equal rights or employee protection.” 

Key Takeaways

The Home Depot decision offers several practical lessons for employers navigating political and social expression in the workplace.

• First, the case underscores that Section 7 rights may extend to symbolic or expressive conduct. Employers cannot assume that political or social messaging is automatically unprotected simply because it touches on broader public issues. When employees tie that messaging to concerns about discrimination, safety, or other working-condition matters, the NLRB may view it as protected concerted activity.
• Second, the decision illustrates that the “special circumstances” exception remains narrow but viable when supported by concrete, contemporaneous facts. Employers should not view this exception as a catch-all defense; rather, they should be prepared to demonstrate specific, objective safety or operational risks if they intend to restrict otherwise protected expression.
• Third, the case highlights the importance of consistency and documentation. Employers seeking to enforce dress-code policies should ensure that those policies are applied uniformly, are clearly written, and are tied to legitimate business interests such as safety, customer relations, or operational efficiency. When concerns arise, employers should contemporaneously document the factual basis for any restrictions or disciplinary decisions, including prior incidents or threats that informed their judgment.
• Finally, employers should recognize that the NLRB and the courts may not evaluate these issues through the same lens. The NLRB’s analysis focused on the connection between the BLM message and workplace concerns about racial mistreatment; the Eighth Circuit, by contrast, focused on the broader context and safety risks. Because these cases are highly fact-specific, employers should approach politically charged expression with caution and seek legal guidance early. 

Overall, the case reinforces that navigating political and social expression at work requires a careful balance: respecting employees’ Section 7 rights while also protecting legitimate business interests.

Employers who take a measured, well-documented approach will be better positioned if disputes arise.

Wynne James is a second-year JD candidate at the UA Little Rock Bowen School of Law and a law clerk at Wright Lindsey Jennings of Little Rock.