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Bad Haircut Leads to Unfair Labor Practice

What’s the difference between a good haircut and a bad haircut?  Two weeks.

That’s funny.  But one employer wasn’t laughing when an employee’s botched haircut started a chain of events that resulted in a finding that it violated the National Labor Relations Act by firing the employee for engaging in protected concerted activity.  
So how did a bad haircut lead to an unfair labor practice charge and a federal lawsuit? 
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility.  Embarrassed by a “terrible haircut” and unable to “do anything” with her heir, Wright-Gore began wearing a hat to work.  After a week, she was told the hat violated the dress code, so she needed to remove the hat or go home.  Wright-Gore protested that other employees were allowed to wear hats, refused to remove her hat, and left for the day.
She returned the next day, which, as fate would have it, was Halloween.  Employees were allowed to wear costumes.  She dressed as a “race-car fan,” and her costume included—you guessed it—a hat.  She was told to remove the hat, which she did, but she was written up for insubordination.
Over the next few days, Wright-Gore observed that other employees were wearing hats and displaying tattoos, in violation of the dress code, without consequence.  So she began talking to other employees to enlist their support for what she felt was unequal enforcement of the policy.  To bolster her case, she used her cell phone to take pictures of other employees who were dressed contrary to policy. 
One of the employees complained to management that Wright-Gore had photographed him without permission.  Alas, the company had a policy against taking pictures inside the facility without written authorization.  The company investigated.  Upon confirming that she had in fact taken unauthorized pictures, it fired her for that reason. 
Wright-Gore filed a complaint with the National Labor Relations Board.  The NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 8(a)(1) of the NLRA makes it unlawful for employers “to interfere with, restrain, or coerce employees in the exercise of [these] rights.”  The right to engage in concerted activity is not limited to employees who work for a unionized employer.  This is the same provision underlying the NLRB’s recent actions against employers for disciplining employees who make disparaging remarks about the company or coworkers on Facebook or other social media.
At the hearing, Write-Gore testified that she had been speaking with other employees to get their support, and she wanted to go to management to see that the dress code was being fairly enforced for everyone.  She also presented evidence that the photography policy had never been enforced before, and that employees routinely took pictures of each other at work, freely sharing them and posting them on company bulletin boards. 
An administrative law judge ruled that the employer had violated the NLRA. It found that “what had initially started as an individual complaint . . . 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.”  The ALJ said that violating the photography policy was not so egregious as to strip her of the NLRB’s protections, particularly given that the policy had not previously been enforced.  The ALJ thus ordered the company to comply with the law and reinstate Wright-Gore with back pay and interest.  The case made its way through levels of administrative and judicial review, and last month the U.S. Court of Appeals for the Fourth Circuit ruled that the ALJ’s finding was supported by the evidence.  NLRB v. White Oak Manor, Case No. 10-2122 (4th Cir. Sept. 22, 2011).  

So what are the lessons here? 

First, if a policy is worth having, it’s worth enforcing.  And if it’s worth enforcing, it needs to be enforced fairly and even-handedly.  As the old saying goes, unenforced laws are bad laws. 
Second, don’t forget that Section 8(a)(1) of the NLRA protects employees regardless of whether they work for a unionized employer.  Thus, if an employee engages in protected concerted activity, even if it violates a workplace rule, she still may be legally protected from discipline, unless the conduct is so egregious as to take it outside the NLRB’s protection.  It can be tricky to determine if an employee’s conduct is concerted, and, even if it is, whether it meets the egregious standard.  So run it by your lawyer if you’re not sure.

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