On September 2, 2026, the U.S. Court of Appeals for the Second Circuit issued a decision that may prove beneficial to employers in defending their workplace dress code and uniform policies against unfair labor practice challenges. In Siren Retail Corporation, d/b/a Starbucks Reserve Roastery v. NLRB, the court rejected the National Labor Relations Board’s current framework for evaluating employer policies that restrict employees’ ability to display union-related clothing, buttons, or other insignia in the workplace.
The NLRB articulated the current framework in its 2022 decision, Tesla, which created a legal presumption that an employer’s uniform and dress code policies that restrict employees’ ability to display union insignia or messages are unlawful. For an employer to rebut that presumption, they were required to show not only that “special circumstances” existed justifying the restriction, but also that the restriction was narrowly tailored to address those circumstances. The Second Circuit’s opinion now calls that framework into question and may provide employers within that jurisdiction additional arguments for defending workplace appearance policies.
Background
In Siren Retail Corporation, the issue centered around the enforcement of Starbucks’ uniform policy at one of its “Reserve Roastery” locations in New York City. During a campaign to secure a first collective bargaining agreement, a number of employees arrived to work in shirts displaying their union’s name and logo; however, the employees were asked to change, as the t-shirts did not comply with Starbucks’ dress code. In response, the union filed an unfair labor practice (ULP) charge asserting that three rules in Starbucks’ dress code policy interfered with employees’ rights under the National Labor Relations Act (NLRA):
- The policy limiting employees to one non-Starbucks approved pin (the “One-Pin Policy”);
- The rule prohibiting pins advocating for political, religious, or other personal issues; and
- The rule restricting shirts containing logos, designs, or writing not previously approved by Starbucks.
The NLRB found all three rules to be unlawful and Starbucks appealed. On appeal, the Second Circuit overturned the NLRB’s finding as to the One-Pin Policy based on precedent which upheld a materially similar restriction.
In addition, the court rejected the NLRB’s use of the Tesla framework when evaluating the two other policies. Specifically, the court discussed the seminal Supreme Court case of Republic Aviation and explained that decision did not make every restriction on display of union insignia or messages unlawful but instead mandates a balancing of employees’ rights against an employer’s legitimate business interests. In this instance, the court held that the NLRB’s application of Tesla improperly tipped that balance by requiring employers to satisfy an overly demanding standard in every matter where a dress code or uniform policy limited the display of union insignia. According to the court, Tesla’s framework failed to give proper weight to the employer’s legitimate interests in maintaining its brand, image, uniformity, and workplace operations and failed to adequately distinguish the difference between minor and more substantial restrictions on employee expression.
The Second Circuit’s ruling did not expressly hold that Starbucks’ policies are lawful. Rather, it remanded the case to the NLRB for reconsideration of the matter under the balancing framework outlined in its opinion. Upon reevaluation, the Board was instructed to consider whether balancing should take into account the extent these policies intrude on employee rights, including whether the restrictions are complete or only partial, whether the restrictions are facially neutral, nondiscriminatory, and applied consistently, and the overall context surrounding the employer’s reason for implementing the restriction.
NLRB Deference Post-Loper Bright
Beyond the court’s discussion of Tesla and balancing frameworks, a larger and more substantial question was placed in the spotlight: what level of deference, if any, courts must afford the NLRB’s legal conclusions after the Supreme Court’s recent decision in Loper Bright. That case, handed down just two years ago, eliminated the longstanding Chevron standard and redefined how courts are to evaluate federal agency decisions. While the NLRB’s legal interpretations may still be viewed as persuasive, they are no longer entitled to the same deference previously afforded under Chevron.
For employers, this may create new avenues to challenge NLRB-created legal standards in federal court. In addition, it may signal a trend of courts revisiting longstanding NLRB doctrines that rely upon interpretations of Supreme Court precedent.
Conclusion and Main Takeaways
The decision in Siren Retail Corporation reinforces an emerging post-Loper Bright trend of federal courts applying more scrutiny to the NLRB’s legal reasoning in the wake of its decisions. For employers maintaining facially neutral dress-code and/or uniform policies, the Second Circuit’s opinion provides additional support for defending them when such policies promote legitimate business interests. Importantly, the decision is not a grant of immunity from liability: employers should continue to evaluate whether their workplace appearance policies could affect protected activity under the NLRA and should ensure such policies are applied consistently.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
