On September 2, 2026, the U.S. Court of Appeals for the Second Circuit issued its decision in Siren Retail Corp. v. NLRB, No. 24-3168, granting Starbucks’ petition for review and denying enforcement of the National Labor Relations Board’s finding that the company’s workplace dress code policies constituted unfair labor practices under the National Labor Relations Act. The case arose from a 2022 incident in which employees at a Starbucks Reserve Roastery in New York City wore union-branded shirts during a national organizing campaign. This prompted enforcement of the company’s existing dress code, which prohibited employees from wearing, while at work, (1) more than one union button, (2) buttons or pins that advocate for political, religious, or personal issues, and (3) shirts with writings that were not pre-approved by Starbucks. At the core of the dispute was the NLRB’s reliance on its 2022 Tesla, Inc. decision, which established a rebuttable presumption that all employer-mandated dress codes limiting the display of union insignia, including partial restrictions, are presumptively unlawful, and which required employers to demonstrate that their policies were “narrowly tailored” to serve articulated special circumstances.
The Second Circuit squarely rejected the Tesla framework, holding that the Board’s strict presumption and narrow tailoring requirement are inconsistent with the balancing of employer and employee interests mandated by the Supreme Court’s foundational decision in Republic Aviation Corp. v. NLRB. The court found that Tesla‘s approach — which the Board’s own dissenting members had likened to constitutional strict scrutiny — placed an unjustifiably heavy burden on employers by treating even facially neutral, partial restrictions on union insignia as presumptively illegal. In its place, the Second Circuit directed the NLRB to apply “a more evenly measured balancing test” on remand and outlined three factors the Board should “seriously entertain”: (1) the extent of the intrusion on employee Section 7 rights, including whether the policy imposes a full or only a partial ban on union insignia; (2) whether the employer’s policy is facially neutral, nondiscriminatory, and consistently enforced; and (3) the context or circumstances underlying the restriction. Notably, the court also reaffirmed its own prior ruling in Starbucks I and held that the company’s one-pin policy did not violate the Act.
Bottom Line
For employers, this decision is a significant development indicating the NLRB cannot subject every employer dress code or uniform policy to a rigid presumption of illegality and a strict-scrutiny-like standard of review. As a practical matter, employers should review their existing dress code and uniform policies to ensure they are facially neutral, nondiscriminatory, and consistently applied. While this decision does not give employers carte blanche to prohibit all union insignia, it restores a meaningful balancing framework that respects employer interests in maintaining workplace standards alongside employees’ organizing rights. For additional guidance regarding dress code policies and standards, please contact our offices.