Employer’s Dress Code Ban on BLM Apparel During Work Hours Upheld

This includes a recent NLRB decision, Whole Foods Market, Inc. (July 31, 2026), exploring whether an NLRA-covered employer — unionized or not — can prohibit employees from wearing “Black Lives Matter” or “BLM” messaging on their work uniforms during work hours as part of its dress code.

The issue is whether this messaging ban violates the NLRA by prohibiting employees from engaging in concerted activities related to the terms and conditions of their employment. The NLRB held that the employees’ purpose in wearing BLM messaging was not related to NLRA-protected concerted activities, so the messaging ban was lawful under the NLRA.

Employers should also remember that a legally compliant dress code requires more than just meeting NLRA standards — it needs proactive handbook reviews, legitimate business justifications and strict adherence to California’s nondiscrimination laws.

Dress Code and BLM Messaging Conflict

Whole Foods Market, Inc. (Whole Foods) operates hundreds of stores throughout the U.S. and employs thousands of workers who may engage in concerted activities under the NLRA.

In May 2020, Whole Foods maintained a general dress code that required wearing Whole Foods — or affiliated vendor — branded tops. If the employee does not wear a branded top, they must wear a top without any visible slogan, message, logo or advertising. This dress code then provided leadership with the final authority at each individual store for enforcing the dress code.

Following the death of George Floyd on May 25, 2020, the Black Lives Matter (BLM) movement became prevalent across the U.S. To show support for the movement, some Whole Foods employees began displaying BLM messaging on face masks, pins and shirts while working their shifts. This behavior occurred in stores across the nation; in some cases, only a single employee participated, while other cases involved multiple employees in the same store.

In response, leadership at several stores determined that this messaging violated the dress code. While specific determinations varied, the general consensus from various store leadership was that displaying BLM messaging was akin to other controversial or political messaging and that if stores allowed BLM messaging, they would have to allow other controversial messaging forms.

Enforcing the dress code, store leadership would instruct employees to remove their BLM messaging or clock out and go home for the day. Employees were warned that if they declined to remove their messaging and were sent home, it would result in a negative action under the store’s attendance policy. Some employees chose to remove the messaging while others declined and were sent home. The employees sent home received “points” on their record under the attendance policy, and if an employee received enough points, they would receive a corrective action. Whole Foods never enforced the dress code during non-working hours.

Several employees received corrective actions and chose to no longer wear their BLM messaging during work. Some continued to do so despite the corrective actions, which resulted in the termination of their employment.

In November 2020, Whole Foods revised its dress code to more explicitly apply it to all “apparel” worn by employees including clothing, shoes, gloves, accessories, jewelry, piercings, belts, hats, and head coverings or other items worn in the hair.

As result of this enforcement, several employees filed charges with the NLRB alleging that Whole Foods’ dress code violated the NLRA by prohibiting the wearing of BLM messaging during work hours and enforced that prohibition by disciplining, discharging or constructively discharging employees who violated the dress code.

NLRA Protections Require Employees to Engage in a Protected Concerted Activity

The NLRA protects the rights of employees to engage in a “protected concerted activity,” which the NLRB generally defines as two or more employees taking action relating to the terms and conditions of their employment for their mutual aid or protection. Some examples of this type of protected concerted activity include but are not limited to:

• Two or more employees addressing their employer about improving their pay;
• Two or more employees discussing work-related issues beyond pay, such as safety concerns or other workplace conditions, with each other;
• Two or more employees discussing how they would vote in a union election; and
• A single employee speaking to an employer on behalf of one or more coworkers about improving working conditions.

Reviewing the evidence provided during the hearing on the charges, the administrative law judge (ALJ) found that the Whole Foods employees engaged in a concerted activity as many of the employees began wearing BLM messaging after learning that other employees were. However, the issue is whether that concerted activity was protected under the NLRA as being related to the terms and conditions of the Whole Foods employees’ employment for their mutual benefit and protection.

The ALJ notes that similar dress codes can violate the NLRA if they prohibit messaging related to unionization or even other “political” matters as long as the message is tailored to advancing the mutual aid and protection workforce. For example, this could include messaging supporting legislation or ballot initiatives that increase the minimum wage or allow for more protected time off from work, which is “political in nature”

In this case, the employees argued that one main tenet of BLM is to address systemic racism in various parts of society, including systemic racial issues in the workplace. Because the employees are wearing messaging supporting that, they are working in concert on a workplace issue for their mutual aid and protection. The employees also argued that those who repeatedly violated the dress code were also engaged in protected activities by protesting a workplace rule that the employees considered invalid, or even possibly racist, through those violations.

Addressing the BLM messaging itself, the ALJ found that the employees’ motivation to wear it was motivated by solidarity of a broader social movement too far removed from the workplace to be protected. In other words, there wasn’t enough evidence to support the claim that the employees’ motivation in wearing BLM messaging was related to their workplace instead of a more general societal message.

The ALJ also declined to accept the employees’ argument that violating a rule by itself is a protected activity. The ALJ noted past NLRB precedent held that employees acting in concert with each other to disobey a rule isn’t a protected activity nor does it make the rule invalid. Instead, protests, letters and demands to the employer to change a workplace rule are examples of a protected activity related to objecting.

When the employees appealed the ALJ’s decision to the NLRB, the NLRB upheld the entirety of the ALJ’s ruling on this issue. It agreed that the employees’ purpose in wearing BLM messaging was too far removed from any concerted activity addressing the terms and conditions of their employment for their mutual aid and protection.

Other Dress Code Compliance Issues

Ensuring NLRA compliance is not the only issue that employers must consider when drafting and enforcing workplace dress codes. Dress codes must also be nondiscriminatory under California’s Fair Employment and Housing Act (FEHA), which prohibits discrimination in the workplace based on a protected characteristic such as sex, gender, race or religious beliefs. Dress codes can become discriminatory if they negatively impact an employee based on a protected characteristic. Potential issues may include dress codes that:

• Require gender conformity in the way employees dress, such as requiring men to wear pants and women to wear dresses or skirts;
• Prohibiting employees from wearing items related to their sincerely held religious beliefs; or
• Banning certain hair textures or hairstyles associated with race, such as braids, locs or twists.

Employers may maintain a standard dress code that is nondiscriminatory and can even require or ban certain apparel for legitimate business reasons, such as professionalism and workplace safety.

Employers Should Be Proactive and Vigilant About Handbook Policies

This NLRB decision serves as a reminder for employers to review their employee handbook policies for legal compliance. Even seemingly neutral policies may become problematic if they are enforced in a way that infringes on employee rights. For example, a dress code policy that prohibits all headwear without exception may implicate an employee’s ability to express support for unionization or violate their sincerely held religious beliefs.

Instead, when designing their handbook policy, employers should follow a procedure to help craft and enforce a proper, defensible policy, which should include:

• Identifying the legitimate business purpose behind the rule. For example, if an employer is designing a dress code for uniformity and professionalism, it should directly reflect and support those specific goals.
• Avoiding blanket prohibitions where possible. If a policy prohibits behaviors without exception, they can often have a chilling effect on an employee’s exercise of their rights under the law. Courts and administrative boards have frequently found these types of blanket prohibitions to be facially unlawful.
• Considering how the policy might affect protected activities or protected classes and whether the policy’s requirements are overbroad.
• Auditing policy enforcement by reviewing whether the policy is meeting its designed purpose or whether operations have changed, rendering the policy less effective. Handbook policies should be regularly reviewed for legal changes as well.

At all times during the process, employers should consult with legal counsel with any questions or concerns to ensure their dress code — or other handbook policy — will comply with various employment laws.