Workplace Speech As A Safety Issue: New Guidance From The Federal Bench

Many of us remember the events of May 2020, when Minnesota resident George Floyd tragically lost his life in an interaction with local police. This incident placed the Black Lives Matter (or BLM) movement center stage in the nationwide conversation about race relations in this country.

Shortly after Mr. Floyd's death, and less than seven miles away, certain employees of Home Depot began wearing BLM insignia while at work. One such employee wrote "BLM" in black marker on the front of the orange Home Depot apron he wore while on shift, stating that he did so as an "act of solidarity" against "prejudice and racism."

While Home Depot's dress code generally encourages employees to personalize the aprons they wear while on shift, in this instance, the employee's manager insisted that the employee not return to work until the particular personalization that this employee chose, referencing support for the BLM movement, was removed.

The employee refused to remove the lettering, resigned, and filed a charge of unfair labor practices with the National Labor Relations Board (NLRB). The NLRB then took up this employee's cause, filing suit to allege that the act of refusing to allow employees to write "BLM" on their work aprons interfered with rights protected by the National Labor Relations Act.

In analyzing the NLRB's claim, the Eighth Circuit Court of Appeals found that "special circumstances" existed which justified Home Depot's decision to outlaw the displaying of BLM writing or insignia.

Specifically, the Court credited Home Depot's claim that permitting employees to display the potentially politically divisive "BLM" lettering could present a safety risk for Home Depot's employees and customers. But the Eighth Circuit issued a stern warning that its opinion should not be applied too broadly, stating:

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. [The employee's] BLM message was broadcast only a few miles from the site of George Floyd's murder. Community tensions were extraordinarily high, and significant unrest and turmoil that at times closed this Home Depot store followed. [The employee's] BLM message divisively – and at times violently – split public opinion on a hot button issue, and store employees reflected the division...[The employee's] insistence on wearing and refusing to remove the BLM message posted a clear risk to customer and employee safety. Though [the employee] had faced no direct threat, the slogan reasonably interfered the security of the workplace....This was a business decision made to preserve the store's apolitical face to customers and safeguard employee safety in a risk-filled environment...In these unique circumstances, Home Depot demonstrated that the narrow special circumstances defense should apply.*

While this opinion signals a willingness, on the part of at least some courts, to allow businesses to enforce restrictions on workplace speech in the name of safety, businesses who choose to terminate or otherwise discipline employees for such speech must carefully navigate the significant risks involved in making such decisions.

In particular, since an employee's expression of political beliefs can, in some circumstances, be deemed to be protected activity under the National Labor Relations Act – as well as federal and state anti-discrimination statutes and other state laws, prior to disciplining the employee for such speech, businesses must consider the context in which the speech occurred, and the associated risks to the business, to determine the most appropriate (and legally defensible) course of action.

Among other factors, businesses should consider:

1. Is the employee acting alone or in concert with other employees?
2. Does the employee's speech relate to a workplace event, as opposed to more general societal concerns?
3. If the employee's speech is prompted by societal concerns, is this a politically divisive issue, and are there unique circumstances in the local community that lead the business to be concerned about potential violence, or negative public relations, at the specific location where the employee works?
4. Other than termination (or other forms of discipline),are there that would allow the employee to express his or her opinions but also take into account the legitimate safety and publicity concerns of the business?

As the Eighth Circuit's opinion indicates, the unique facts of each dispute will likely play a pivotal role in determining whether workplace speech restrictions can lawfully be enforced. Businesses should consult with trusted employment counsel, who can aid in the analysis of how businesses can lawfully respond when those unique facts arise.

* Eighth Circuit Opinion No. 24-1406 (11/6/2025), internal citations removed.

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