Can private employers restrict their employees’ speech?

On July 31, the National Labor Relations Board (NLRB) affirmed the decision by an administrative law judge that Whole Foods could prohibit its employees from wearing clothing and accessories displaying “Black Lives Matter” or “BLM” during work time and discipline them if they violated that rule.

Likewise, the NLRB stated Whole Foods’ dress code policy was not overly broad under the National Labor Relations Act (NLRA).

Section 7 of the NLRA grants employees the right to self-organization and engagement in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to interfere with employees exercising their Section 7 rights.

In June 2020, Whole Foods employees across several stores began wearing BLM messaging on face masks, buttons, pins, T-shirts, and other articles of clothing. Generally, Whole Foods gave its employees the option to remove the BLM items, or keep them on, clock out, and go home. Employees that chose to go home typically incurred time, attendance, or dress policy violations sometime leading to their discharge, although some chose to resign voluntarily.

In New Hampshire, two employees were repeatedly reminded that their BLM clothing violated Whole Foods’ dress code. First, they wore masks displaying “BLM” and “I Can’t Breathe” to work, opting to go home over donning masks with no messaging. But rather than return to their homes, these employees protested Whole Foods on the sidewalk in front of the store where they were joined by customers, strangers and employees on their breaks.

On other shifts, these employees attempted to keep using BLM branding by: wearing masks with BLM written on them in Sharpie, writing BLM on their shoes, and getting “BLM” tattooed across their forearms in temporary ink.

Whole Foods employees in one of the company’s Massachusetts stores engaged in walkouts. There, one of the employees wore a face mask saying “Black Lives Matter” to work around 20 times. That employee supplied her co-workers with BLM masks, and the day after she and other employees were given the option to return home if they wanted to keep wearing their masks, 13 of her co-workers donned BLM masks and walked out of the store after refusing to comply with the policy.

Later, Whole Foods regional managers came to the Massachusetts location to discuss the policy with the employees, who then presented the managers with demands that Whole Foods permit employees to wear BLM clothing, remove the discipline the employees received from refusing to comply, pay back pay to employees who chose to return home, and collect and release the company’s racial demographics “to begin a dialogue on diversity and Black empowerment within the company’s leadership structure.”

Ultimately, these employees were not engaging in concerted activity under the NLRA because their support for the Black Lives Matter movement was not an appeal to action that would directly impact their working conditions as employees.

Implications for employers

Although the NLRB found in favor of Whole Foods, the case serves as a good reminder for employers to review their dress code policies and update them. The dress code at issue in the Whole Foods case required employees to wear store-branded or neutral clothing, extended the policy to accessories, explicitly prohibited slogans and symbols, and included a carve-out permitting the use of union pins and apparel.

Considering 2026 is a midterm election year, employers may want to make their dress code policies clear. However, they should understand that Section 7 protects employees’ rights to wear and distribute items like buttons, pins, stickers, t-shirts or flyers provided they relate to terms and conditions of employment and unionization. An employer that has a rule preventing employees from wearing such items and enforces it may be committing an unfair labor practice.

Similarly, employees are allowed to convey messages, insignia or paraphernalia that are “political” if the message is reasonably related to improving the terms and conditions of employment. For example, the U.S. Supreme Court has said that employees advocating against right-to-work statutes or criticizing the presidential veto of a federal minimum wage law is protected activity under the NLRA.

Overall, employers should keep in mind that a balance exists when requiring a dress code. While employers may legitimately wish to limit their employees’ political expression in the workplace of a particular political candidate or party, an overly restrictive policy can land them in hot water.

Chris Morgan is a Barran Liebman partner. He advises and represents employers on a wide range of employment issues. Contact him at 503-276-2144 or [email protected]

Max Retzlaff is a law clerk with Barran Liebman. He works with attorneys to perform legal research, draft employment policies, create client training materials, and handle case management. Contact him at 503-276-2130.