This Littler Lightbulb highlights some of the more significant employment and labor law developments in the federal courts of appeal in the last month.
Second Circuit Rejects NLRB’s Unfair Labor Practice Decision in Employer Dress Code Case
In Siren Retail Corp. v. National Labor Relations Board, No. 24-3168, __ F.4th __ (2d Cir. Sept. 2, 2026),1 the Second Circuit vacated a National Labor Relation Board’s (NLRB) decision finding that the employer violated the National Labor Relations Act (NLRA) by requiring employees to change out of union-logo shirts into dress-code compliant shirts. The court rejected the NLRB’s application of Tesla, Inc., 371 NLRB No. 131 (Aug. 29, 2022), which created a rebuttable presumption that all mandated uniform codes violate the NLRA. It further rejected the NLRB’s finding that Tesla was supported by the U.S. Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). In fact, the Second Circuit stated, “Republic Aviation and judicial decisions applying it do not support applying a strict presumption against employers without fairly balancing employer and employee interests.”
Moreover, the Second Circuit held, the NLRB’s Tesla standard for determining the lawfulness of workplace dress policies “does little more than pay lip service to balancing,” erroneously placing “a strict-scrutiny-like burden on all employers to justify even facially neutral, partial dress code restrictions…. Absent statutory authority from Congress...
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