Say “Cheese” — You’re Fired!
November 16, 2011
In another example of why it is important for employers to consistently enforce company policy, the Fourth Circuit Court of Appeals recently enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act (NLRA) when it allegedly fired an employee for photographing other employees at work. The Court agreed with the Board that the employee was terminated for engaging in concerted protected activity.
In NLRB v. White Oak Manor, the employer had a policy that prohibited employees from wearing hats and taking photographs inside a long-term care facility. The employee, Nichole Wright-Gore, was embarrassed about a bad haircut and started to wear a hat to work, without comment from her supervisor. After a week, other supervisors told her to remove the hat. When she refused she was sent home. The next day, White Oak employees dressed up and wore costumes for Halloween. Wright-Gore had a costume that included a hat, but her supervisor made her remove it. The employee complained to her employer that the company was enforcing the policy unequally. Upon hearing the employee’s complaint, her supervisor gave her a written warning for insubordination.
During the ensuing weeks, the employee photographed several employees – both with and without their permission – wearing hats and violating other White Oak dress code policies. She also shared the photographs with employees and discussed with them the unequal treatment of White Oak in an effort to gain their support. White Oak fired Wright-Gore for violating the company’s policy prohibiting taking pictures in the facility. The employee then filed an unfair labor practice charge alleging that the employer interfered with her right to engage in concerted protected activity.
First, it is important to remember that the NLRA affects all employers-not just those with union representation. As you may recall from previous posts, Section 7 of the NLRA protects employees’ “concerted, protected activity”. Essentially, employees are allowed to communicate with co-workers about the terms and conditions of employment. An employer’s attempt to hinder or interfere with those rights is a violation of the NLRA which could lead to an unfair labor practice charge being filed on the employees’ behalf by the Board. In this case, Wright-Gore’s complaints were protected concerted activity because she was attempting to have her employer enforce its dress code fairly. While White Oak Manor argued that her activity lost protection because she took pictures of employees without permission, there was evidence that other employees took pictures of each other without permission and displayed those photographs in the facility.
What does this mean to you?
This is another shining example of the National Labor Relations Board becoming more active in enforcing the NLRA against non-union employers the wake of declining union membership. This particular case should serve as a reminder of the importance of consistently and uniformly enforcing your company’s policies.