A supply clerk at a long-term care facility in North Carolina couldn’t “do anything with her hair,” so she wore a hat to work. And that started a process that ended with her employer being found in violation of the National Labor Relations Act.
Nichole Wright-Gore had gotten what she called a “terrible haircut,” and she continued to wear that hat on the job for a week.
Then White Oak Manor’s personnel director informed her that she was in violation of the organization’s dress code. Wright-Gore protested that other workers also wore hats at work; she refused to remove the hat and went home.
At a meeting the next day, she was issued a written warning for insubordination.
That warning spurred Wright-Gore into action. She started to monitor the clothing worn by her co-workers — and discovered that several workers wore hats and displayed tattoos, another prohibited practice under the dress code.
She used her cell phone to take pictures of four co-workers who were dressed contrary to company policy. Two gave Wright-Gore permission to take their photo; two were unaware they were being photographed.
She also involved co-workers in discussions about how inconsistently the dress code was being enforced.
Word reached company management that Wright-Gore was taking photos and talking to other employees about uneven enforcement of the dress code.
The facility administrator called Wright-Gore into his office and told her she was being fired for taking photos of co-workers “without their permission.”
Wright-Gore filed a complaint with the National Labor Relations Board. At a hearing, an administrative law judge ruled that White Oak had terminated her for “protected concerted activity” — investigating whether her employer was applying a particular policy consistently.
The ALJ ruled that “what had initially started as an individual complaint (by Wright-Gore), that she was being treated unfairly by being required to remove her hat, evolved into a campaign … to have the dress code enforced in a fair and equitable manner.” And that campaign qualified as protected concerted activity.
The nursing home was ordered to reinstate Wright-Gore with full back pay.
Appeals court upholds ALJ
The company continued to fight, taking the case to federal appeals court. There, the judge agreed that Wright-Gore was engaged in protected activity.
And it questioned the company’s rationale for Wright-Gore’s termination. White Oak had no precedent for firing employees who took photos of co-workers without permission.
“Indeed, Wright-Gore’s termination was the first time that White Oak had enforced the policy. Employees routinely took pictures of each other — at facility events or while ‘goofing off’ at work — and never asked for or received permission …
“The company’s utter failure to enforce its picture-taking policy” undercut its argument for the employee’s termination, the judge said.
The full court decision can be found here.
New burden on employers
What’s to be learned here? Attorney James Redeker of the law firm Duane Morris offered some insight in a recent blog post:
- A court on review will give significant deference to the Labor Board’s interpretation of the law. As a consequence, goofy board decisions may survive judicial review.
- The employee’s complaint about the dress code began as something very personal, but the mere fact that the employee sought emotional support from other employees was sufficient for the board to conclude that the employee was engaged in concerted activity. That’s the goofy part.
- Once protected conduct is found, the board will find subsequent related but different events to be protected as well. Here, the employee was discharged for violating a rule that was different from the rule she was protesting because the violation of the no-photograph rule was linked to the events about which the employee was protesting.
When deciding issues of discipline and discharge particularly, employers can no longer restrict their analyses to protections afforded under the civil rights laws. Now, the investigations must include whether the employee’s conduct may be protected concerted activity under the National Labor Relations Act.