In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a National Labor Relations Board decision finding that an employer violated the National Labor Relations Act by discharging an employee who had photographed coworkers at work without permission.
The court agreed with the Board 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. The facility's policies prohibited employees from wearing hats and from taking photographs inside the building.
Wright-Gore, embarrassed by a haircut, began wearing a hat to work. For about a week supervisors did not comment, but when one eventually told her to remove the hat she refused and was sent home.
The following day, when other employees dressed for Halloween, Wright-Gore's costume included a hat, but a supervisor required her to remove it pursuant to company policy. Wright-Gore complained that the hat rule was enforced unequally; her supervisor told her to worry only about herself and issued a written warning for insubordination based on the earlier refusal to remove the hat.
Over the next weeks Wright-Gore photographed several employees who were violating dress policies, sometimes with their consent and sometimes without. She shared the photographs and discussed unequal enforcement with coworkers in an effort to gain support for having the rules applied fairly. White Oak eventually discharged her for violating the photography policy.
The Administrative Law Judge found that Wright-Gore's complaints became protected concerted activity once they evolved into an effort to have White Oak enforce its dress code fairly. The ALJ also found that she did not lose protection simply because she photographed coworkers without permission, in part because there was evidence that other employees took and displayed photos without consequence. The Board affirmed.
On appeal the employer argued Wright-Gore acted only out of self-interest and so could not have engaged in protected concerted activity. The Fourth Circuit rejected that view, noting that an employee's self-interest can catalyze complaints without removing NLRA protection. The decision also emphasized the employer's inconsistent enforcement of its photography and dress policies.
This case highlights the importance of enforcing workplace policies consistently and the reality that individualized complaints can trigger protected concerted activity. For related insurance topics, see Law Enforcement Officer Liability Insurance and Law Enforcement Personnel Insurance.
If employers want to review policy enforcement or potential coverage issues, talk to an agent.
Frequently Asked Questions
What is "protected concerted activity"?
Protected concerted activity refers to actions by employees acting together to improve wages or working conditions, or to bring concerns to management on behalf of coworkers; such activity is generally protected by the National Labor Relations Act.
Can an employee lose NLRA protection for violating a workplace policy?
Not automatically; whether protection is lost depends on the nature of the misconduct and whether similar conduct by others was tolerated by the employer.
How should employers enforce dress and photography policies?
Employers should apply policies consistently, document enforcement, and communicate expectations clearly to reduce disputes and potential unfair labor practice claims.
What can an employee do if they believe they were punished for complaining about unequal enforcement?
An employee may file an unfair labor practice charge with the National Labor Relations Board or seek guidance from a representative familiar with labor rights and workplace procedures.