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Fourth Circuit Allows Bad Hair Day to Turn Into Unfair Labor Practice

    Client Alerts
  • November 11, 2011

Section 8(a)(1) of the National Labor Relations Act prohibits employers from retaliating against employees for engaging in concerted activity with regard to complaints over terms and conditions of work. Two weeks ago in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) appeared to blur the lines between what is considered protected concerted activity, as opposed to an employee's individual grievance with her employer.

In NLRB v. White Oak Manor, the employee in question got a bad haircut. She began wearing a hat to work to cover it, until she was informed by management that this violated the facility's dress code. Over the next several weeks, the employee began collecting evidence that other employees were violating the dress code, but were not being disciplined for such violations. She began photographing employees wearing hats at work, despite another policy that prohibited photography within the facility. When a co-worker complained about being photographed, the employer terminated her employment.

She filed a complaint with the NLRB, which concluded that the termination was in violation of the protected concerted activity provisions of the NLRA. The Fourth Circuit agreed, affirming an administrative judgment for the employee. The employer contended that her behavior was not protected concerted activity, because she was acting on her own behalf to respond to the disciplinary action taken against her.

The Fourth Circuit concluded that there was enough evidence of concerted activity to uphold the NLRB decision. The court noted that concerted activity does not have to spring from a formalized plan. The employee engaging in protected activity can do so out of personal motivations as well as an attempt to act on behalf of other employees. In this case, the employee presented evidence that she had engaged with her co-workers to seek consistent enforcement of the dress code policy. The Fourth Circuit also noted that the employer had never consistently enforced either the dress code or photography policy in the past.

This decision makes it difficult for employers to determine when an employee is acting on her own behalf or in concert with co-workers. When an employee's grievances appear to directly relate to individual disciplinary action taken against her, an employer may have difficulty determining that she is acting on behalf of other employees. This is especially evident when the concerted activity is as informal as that alleged in this case. This decision also gives employees the ability to convert individual disputes with employers to protected concerted activity through minimal evidence that they are also acting on behalf of their co-workers.