NLRB’s Dress Code Standard Criticized by Second Circuit Judges

A federal appeals court expressed skepticism toward the National Labor Relations Board’s Biden-era precedent for employee dress codes that it applied to rule against Starbucks Corp.’s requirements for workers at its New York City Reserve Roastery café.

The NLRB’s standard from its 2022 decision in Tesla, Inc. appeared to stray from the type of balancing test that the board traditionally used for considering limits on what workers can wear to show union support, judges on the US Court of Appeals for the Second Circuit said during oral argument Wednesday.

Judges William Nardini, a Trump appointee, and Susan Carney, an Obama appointee, each disapprovingly compared the Tesla test to “strict scrutiny”—the highest threshold courts use to determine the constitutionality of government action.

The Second Circuit seemed poised to join the Fifth Circuit in rejecting the Tesla standard, which presumes that an employer’s limitations on the display of union insignia in the workplace is unlawful unless they’re justified by special circumstances. The restrictions must also be narrowly tailored to address those special circumstances.

The court’s ruling will likely have a broader impact on how it handles future NLRB cases, as the judges probed lawyers on what level of deference courts should apply to the board’s decisions. The Manhattan-based appeals court hasn’t handed down a full, precedential opinion on an NLRB ruling since the US Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which ended the Chevron doctrine’s mandatory judicial deference to agency interpretation of vague laws.

The case is Siren Retail Corp. d/b/a Starbucks Reserve Roastery v. NLRB, 2d Cir., No. 24-3168, oral argument held 11/12/25.