A North Carolina employee at a long-term care facility alleged she’d gotten a bad haircut, so she began wearing a hat to work. Several days later, a supervisor ordered her to take it off or go home, as the facility’s dress code barred hats, along with several other displays, including tattoos. The employee went home, but she returned the next day and began a protest.

What happened. “Jones” was a supply clerk at White Oak Manor, a healthcare facility in Shelby. Given the bad haircut, she donned a hat and went to work. No one said anything for a full week, but on the following Monday, the HR manager told her the hat violated the dress code. Rather than take it off, Jones simply went home. But the next day was Halloween, and many workers arrived in costume, including a number wearing hats, as did Jones.

Although she removed it when asked to, she was called to a disciplinary meeting and given a written warning for insubordination. Looking around her in subsequent days, Jones noticed several employees wearing hats and others with visible tattoos. Protesting to other employees that the dress code was being unfairly enforced against her, she began taking pictures of other employees violating the code. Another employee helped her, and she continued to talk with co-workers about the issue. However, one employee whose permission she had not asked when she photographed him complained.

Management responded by firing Jones, asserting that taking photos in the facility—though it had often been done before—was also against the rules. Jones complained to the National Labor Relations Board (NLRB) that her right to concerted, protected activity had been violated. An administrative law judge agreed with her and ordered White Oak to reinstate her with back pay. But White Oak refused, and the NLRB appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

What the court said. White Oak argued that Jones had complained only in her own interests, not those of other employees. Jones noted that no other employee had ever been disciplined for taking photos at work, and NLRB asserted that taking pictures, especially when no patients were included, wasn’t so terrible. Appellate judges affirmed NLRB’s order. NLRB v. White Oak Manor, U.S. Court of Appeals for the 4th Circuit, No. 10-2122, unpublished (2011).

Point to remember: Employees, whether unionized or not, have the right to talk with each other about the terms and conditions of their employment under the National Labor Relations Act.

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