The National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activity, including the display of union-related insignia, such as buttons, pins, and apparel—but that protection is not absolute. The National Labor Relations Board (Board) and courts recognize a “special circumstances” exception permitting employer restrictions on wearing union insignia justified by specific operational, safety, customer-relations, or business-image concerns. The Eighth Circuit’s November 2025 decision in Home Depot U.S.A., Inc. v. NLRB underscores an expanded, context-driven approach to this analysis, emphasizing location, timing, and public sensitivities as integral to the inquiry, particularly where safety or reputational risks exist. 158 F.4th 910 (8th Cir. 2025).

Section 7’s Protection and the Presumption Against Bans on Union Insignia

Section 7 of the NLRA guarantees employees the right to engage in concerted activities for mutual aid or protection; Section 8(a)(1) prohibits employer interference with that right. Thus, rules preventing employees from wearing union insignia to advertise their sentiments are presumptively unlawful unless the employer establishes special circumstances outweighing the protected interest. See Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Further, even where there are special circumstances, inconsistent enforcement is an independent basis to support an NLRA violation and evidences an employer’s lack of a bona fide need for a restriction. See In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018) (finding employer’s requirement employees wear company-issued Christmas buttons undercut claim that special circumstances required employee uniforms to be button-free).

The Traditional “Special Circumstances” Framework

The special circumstances doctrine balances employees’ Section 7 rights and employers’ management interests. It allows restrictions where insignia would jeopardize safety, damage products or equipment, exacerbate employee dissension, or unreasonably interfere with an employer’s deliberately cultivated public image. See P.S.K. Supermarkets, Inc., 349 NLRB 34, 35 (2007); ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079, 1086 (8th Cir. 2016); In-N-Out, 894 F.3d at 714-15.

The Board demands specific evidence beyond speculative fears or conclusory testimony, though it does not invariably require proof of actual business loss or disruption. See HealthBridge Mgmt., LLC v. N.L.R.B., 798 F.3d 1059 (D.C. Cir. 2015).

To rely on public image, an employer must show it established a particular public-facing image as part of its business plan, it maintains appearance rules to further that image, and the banned insignia undermines that objective. See United Parcel Serv. v. N.L.R.B., 41 F.3d 1068 (6th Cir. 1994) (finding consistently enforced nondiscriminatory appearance standards for public-facing employees to project an image of cleanliness, uniformity, and efficiency constitutes special circumstances); Produce Warehouse of Coram, Inc., 329 NLRB 915 (1999) (finding consistently enforced uniform policy requiring employees to wear company-supplied hats, rather than union hats, constituted a special circumstance). The Board has also upheld bans on message buttons, insignia, and clothing that disparage products or services based on the employer’s legitimate interest in protecting its customer relationships where the message or slogan reasonably created customer concern. See Noah’s New York Bagels, Inc., 324 NLRB 266 (1997) (upholding ban on T-shirts mocking the employer’s kosher policy).

Healthcare settings illustrate context-specific tailoring. In immediate patient-care areas, restrictions may be categorical because labor disputes may undermine patient care, distract from a calm atmosphere, cause confusion, and interfere with hygiene protocols; in non-patient areas, restrictions are permissible if necessary to avoid disruption of healthcare operations or disturbance of patients. See Beth Israel Hospital v. N.L.R.B., 437 U.S. 483 (1978); N.L.R.B. v. Baptist Hospital, Inc., 442 U.S. 773 (1979). This setting-specific rule underscores that special circumstances remain an exception grounded in concrete operational concerns.

The 'Home Depot' Case: A Context-Driven Recalibration

Home Depot required employees to wear a uniform orange apron but allowed staff to customize aprons with pins, illustrations, and messages. See 158 F.4th at 914-16. However, the dress code prohibited displays of causes or political messages unrelated to workplace matters. The Home Depot dispute arose from an employee’s refusal to remove “BLM” markings from a company apron. The ALJ initially found no concerted activity because the messaging was uncoordinated among employees and had an attenuated relationship to workplace issues. See Home Depot USA, Inc., 18-CA-273796, 2022 WL 2115188 (N.L.R.B. 2022). The Board reversed in 2024, finding the BLM messaging occurred alongside group concerns about workplace racial mistreatment, including vandalized Black History Month displays, thus bringing the activity within Section 7’s scope. See Home Depot USA, Inc., 373 N.L.R.B. No. 25 (2024).

The Board rejected Home Depot’s special circumstances defense, concluding the record did not establish a non-speculative imminent safety risk, significant dissension, or that the public would perceive the BLM messaging as contrary to Home Depot’s curated image, especially because the company encouraged personalized aprons.

In November 2025, the Eighth Circuit vacated and remanded, holding the Board failed to adequately consider the employer’s special circumstances. See 158 F.4th 910. The court emphasized three contextual factors: the store’s proximity to George Floyd’s murder site, extraordinary community tensions surrounding the BLM movement, and recent civil unrest prompting temporary store closures.

The court distinguished between categorical bans and tailored restrictions in the special circumstances calculus, noting that limited restrictions aimed at messages posing safety or business risks impose a lesser burden than blanket prohibitions. (Finding that Home Depot’s restriction on “BLM” apron messages was not a blanket ban where it offered alternative messages supporting racial equality). In doing so, the court cited decisions recognizing that prohibitions and restrictions are analytically distinct and that targeted limits may withstand scrutiny where context indicates heightened risk. Tesla Inc. v. NLRB, 86 F.4th 640, 653 (5th Cir. 2023) (“A prohibition is a greater infringement than is a restriction”); Boch Imports, Inc. v. NLRB, 826 F.3d (1st Cir. 2016).

The panel’s reasoning turned on specific facts: the message’s local salience, timing amid community turmoil, and evidence that the messaging sparked polarized counter-messaging among co-workers. See 158 F.4th at 920-24. The court concluded, in this unique environment, the BLM display reasonably threatened workplace security even absent a direct threat to the employee, aligning with decisions upholding restrictions where safety risks were reasonably foreseeable. See e.g., Pathmark Stores, Inc., 342 NLRB 378 (2004); Standard Oil Co. of California, 168 NLRB 153, 161-63 (1967).

The Eighth Circuit vacated the Board’s order and remanded, signaling the Board must more rigorously account for context-specific safety and public-sensitivity factors when evaluating employer justifications.

Doctrinal Implications: Refining the Special Circumstances Test

Home Depot underscores that context—geography, timing, community climate, workplace history, and policy architecture—can transform the special circumstances inquiry from abstract balancing into a granular, risk-sensitive assessment.

The opinion reinforces that employers fare better when they maintain neutral uniform rules, apply them consistently, and tailor restrictions to genuine safety or operational threats. Home Depot’s distinction between bans and narrower restrictions invites employers to calibrate responses, opting for narrowly drawn measures justified by concrete risks.

Beyond Union Insignia: Social and Political Messaging

While displaying union insignia sits at the core of Section 7, social-cause or political symbols occupy a more contingent space—protected when tied to collective workplace concerns but less protected when purely expressive or detached from employment terms and conditions. Key determinants include whether the message connects to workplace concerns, whether employees have raised group-based complaints, whether it functions as collective employee pressure, and whether the employer enforces dress policies consistently.

Home Depot indicates that where social or political messaging coincides with extraordinary public sensitivity, local unrest, or heightened safety risks, employers may establish special circumstances justifying limited restrictions, even if the messaging has some nexus to workplace issues. The decision reframes the analysis as context-heavy rather than a categorical rule for or against such displays.

Practical Guidance for Employers and Employees

Employers should maintain facially neutral dress and insignia policies aligned with legitimate business objectives; apply them consistently; and document safety, customer, or operational concerns warranting any content-based restriction. Environments with direct customer contact or heightened sensitivity, such as retail and healthcare, remain amenable to justified limits, though they still require particularized proof rather than conjecture.

For employees, the strongest protection attaches to union insignia and messaging with a clear, collective workplace nexus. When expression shifts toward broader political identity unconnected to workplace conditions, protection becomes uncertain, and employer justifications grounded in demonstrable safety or business-image concerns may prevail, especially in periods of public tension.

Conclusion

The Board’s and courts’ enduring presumption favoring employees wearing union insignia remains intact, but Home Depot refines the “special circumstances” exception by insisting that context matters. Home Depot marks an evolution toward a nuanced, fact-intensive approach that preserves Section 7’s core while acknowledging that modern workplaces operate within volatile public environments that may, at times, require calibrated limits.

Eve I. Klein is a partner at Duane Morris. Jessica Goldstein is an associate with the firm.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.