In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee for allegedly photographing employees at work without permission.
The Court agreed with the Board's findings that the employee was actually discharged because of protected concerted activity and that the employer had not enforced its photography and dress code policies consistently.
Nichole Wright-Gore worked as a supply clerk for White Oak Manor. White Oak's policies prohibited employees from wearing hats and taking photographs inside the long-term care facility.
Wright-Gore was embarrassed about a bad haircut and started to wear a hat to work, without comment from any supervisor. After a week, supervisors told her to remove the hat; she refused and was sent home.
The next day, White Oak employees dressed up in costumes for Halloween. Wright-Gore's costume included a hat, but her supervisor made her remove it pursuant to company policy. Wright-Gore complained that the policy was enforced unequally, and her supervisor gave her a written warning for insubordination because she had refused to remove her hat earlier.
Over the next few weeks, Wright-Gore photographed several employees wearing hats and violating other dress policies, such as failing to cover tattoos. She photographed some employees with their consent and took some photos without consent, then shared the photographs and discussed unequal treatment with coworkers to build support for her argument. White Oak eventually discharged Wright-Gore for violating the photography policy.
Wright-Gore filed an unfair labor practice charge alleging that White Oak interfered with her right to engage in protected concerted activity. The Administrative Law Judge found that her complaints became protected concerted activity when they evolved into an effort to have White Oak enforce its dress code fairly.
The ALJ also considered whether Wright-Gore lost protection by taking pictures without permission. The ALJ concluded she did not, noting evidence that other employees had taken and displayed photos without repercussion. The National Labor Relations Board affirmed the ALJ's findings, and the Fourth Circuit enforced the Board's decision on appeal.
The court rejected White Oak's argument that Wright-Gore could not have engaged in protected concerted activity because her initial actions were motivated by self-interest. As the court explained, an employee's self-interest does not automatically bar protection when the actions evolve into concerted complaints on behalf of others.
This case underscores the importance of consistent enforcement of workplace policies and the reality that individualized complaints can become protected concerted activity under labor law.
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Employers and HR professionals reviewing policy enforcement may also find guidance in resources like Law Enforcement Personnel Insurance that address personnel and liability issues.
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Frequently Asked Questions
What is protected concerted activity?
Protected concerted activity involves employees acting together or on behalf of others to improve working conditions and is generally protected under the National Labor Relations Act.
Can photographing coworkers at work ever be protected?
Yes—if the photographing is part of efforts to address workplace conditions and it becomes concerted activity, it may receive protection, though facts and context matter.
Does inconsistent enforcement of policies affect employer rights?
Inconsistent enforcement can undermine an employer's ability to discipline and may support a finding that discipline was related to protected activity.
What should an employee do before sharing photos of coworkers?
Employees should consider privacy concerns, workplace policies, and whether the action is part of a broader, protected effort to address work conditions.