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Bad Haircut Leads To Unfair Labor Practice

What's the difference between a good haircut and a bad one? 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 the company violated the National Labor Relations Act (NLRA). 

Having a bad hair day
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility. Embarrassed by a “terrible haircut,” she began wearing a hat to work. After a week, she was told the hat violated the dress code and she needed to remove it or go home. She 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. Wright-Gore dressed as an auto-racing fan, and her costume included -- you guessed it -- a hat. She was told to remove the hat, which she did, and was written up for insubordination.
Over the next few days, Wright-Gore observed that some employees were wearing hats and displaying tattoos in violation of the dress code without consequence. 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 the 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. After confirming that Wright-Gore had in fact taken unauthorized pictures, it fired her.
Employer gets clipped
Wright-Gore filed a complaint with the National Labor Relations Board (NLRB), which enforces the NLRA. 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 Act 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 isn't limited to employees who work for a unionized employer.
At the hearing, Wright-Gore testified that she spoke with other employees to get their support and she wanted to go to management to see that the dress code was being fairly applied to 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 (ALJ) ruled that the employer had violated the NLRA, stating that “what had initially started as an individual complaint . . . that [White-Gore] 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 wasn't so egregious to strip her of the NLRA's protections, particularly given that the policy hadn't been previously enforced.
The ALJ 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 the Fourth U.S. Circuit Court of Appeals 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).
Barbershop advice
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 evenhandedly. As the old saying goes, unenforced laws are bad laws.
Second, remember that Section 8(a)(1) of the NLRA protects all employees regardless of whether they work for a unionized employer. 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 that it falls outside the NLRA'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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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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