Big Lots workers get clearer view of lawful retail dress codes
Whole Foods' win on Black Lives Matter apparel shows Big Lots workers where dress codes can stand and where protected workplace speech still has a legal shield.
The National Labor Relations Board ruled Aug. 3 that Whole Foods could bar Black Lives Matter apparel in customer-facing stores, a decision that gives Big Lots workers a clearer read on when retail dress codes can survive legal challenge. The board split 2-1, and the core question was whether the rule functioned as a neutral appearance policy or as a restriction on protected activity.
Whole Foods had already fought over the same issue before. Workers lost an appeal over Black Lives Matter masks on June 28, 2022, and the company later beat an NLRB case over Black Lives Matter apparel on Dec. 21, 2023. In the latest ruling, the focus stayed on customer-facing dress-code restrictions and whether a retailer could defend a policy as part of brand presentation, rather than as a ban aimed at workplace advocacy.
That distinction matters because federal labor law still protects employees who talk with coworkers about wages, hours and working conditions. The National Labor Relations Board does not automatically shield every political slogan worn on the job, but a March 15, 2024 explainer from the MTSU Freedom of Speech Center said employees can have a right to express support for Black Lives Matter while on the job under certain circumstances. The details, not the slogan alone, drive the analysis.
Another retail case showed how differently the same message can be treated depending on the setting and the rule. On Feb. 21, 2024, a federal agency ruled that Home Depot’s ban on a worker’s Black Lives Matter apron was illegal. That contrast underscores why dress-code disputes turn on how a policy is written, where it is enforced and whether it reaches protected concerted activity.
For Big Lots, where cashier, stocking and customer-service duties often overlap on the sales floor, the practical lesson is straightforward. A policy built around consistent branding and enforced evenly is far more defensible than one that singles out union symbols or gets applied unevenly to certain employees. The Whole Foods ruling does not erase workers’ rights; it marks the line between a lawful appearance rule and a policy that crosses into protected workplace expression.
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