1st Amendment Requires Overturning NLRB Uniform Decision

The Retail Litigation Center (RLC) filed an amicus brief with the United States Court of Appeals for the Eight Circuit in an appeal of a National Labor Relations Board (NLRB) decision that held that The Home Depot improperly applied a uniform policy that prohibited store associates from using work aprons to promote religious beliefs, causes, or political messages unrelated to workplace matters.   

The RLC’s brief describes retailers’ intentionality in crafting every part of a store experience. Many retailers choose to cultivate an environment that is neutral on political or social issues to ensure a welcoming space for diverse customers and to build brand loyalty. 
“Retailers are intentional about the messages they communicate to their customers,” said RLC President Deborah White. “Choosing not to display political or social messages often reflects a retailer’s judgment that some issues are best avoided at points of customer interaction, rather than normative judgments on the messages themselves.” 
While the brief explains that the First Amendment has long protected the right to refrain from speaking, (including through employee uniforms), the brief also says that the National Labor Relations Act does not support the NLRB’s decision in this case.
“Political slogans do not qualify as union insignia,” shared Larissa Whittingham, the RLC’s Litigation Counsel. “But even if the employee’s desired message in this case was protected by the NLRA’s Section 7, the Act has long recognized that an employer may restrict messages that it reasonably believes may harm its relationship with customers or its public image.” 

The Retail Litigation Center
Directed by the chief legal officers of the country's leading retail companies, the Retail Litigation Center (RLC) is the only organization dedicated to advocating for the industry's top priorities in the federal and state judiciary. The RLC also works with leading law firms and retail corporate counsel to develop forward-thinking strategies to combat meritless mass action litigation. Founded by the Retail Industry Leaders Association (RILA) in 2010 as an independent organization, the RLC is a 501(c)(6) membership association open to all retailers and select law firms.
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