“Bad Hair Day” Case Reveals Lessons for Facility Managers

The National Labor Relations Act (NLRA) prohibits employers from disciplining or discriminating against employees who engage in “concerted activity.”  Under the NLRA, protected concerted activity includes, among other things, two or more employees discussing wages, hours, or working conditions.  The NLRA applies to most private-sector workplaces, whether or not they are unionized, and the National Labor Relations Board (NLRB) is the federal agency that enforces the NLRA. 

A recent decision from the U.S. Court of Appeals for the Fourth Circuit affirmed the NLRB’s ruling that a long term care facility in North Carolina violated an employee’s right to engage in protected concerted activity when it terminated the employee after she engaged in discussions with her coworkers about the employer’s enforcement of the dress code policy.

The employee was a supply clerk in a nonunionized long term care facility.  She wore a hat to work to cover up a “terrible haircut.”  She went home after one of the managers told her to take off the hat or go home because wearing it violated a part of the facility’s dress code policy.

The next day, when employees were invited to wear costumes to work for Halloween, the employee wore a hat as part of her costume but removed the hat when requested by the facility’s administrator.  The employee protested that she was being unfairly singled out because other employees were not disciplined for wearing hats at work.  The administrator gave her a written warning for insubordination.
In the following days, the employee took cell phone photos of coworkers who were wearing hats at work and violating another part of the facility’s dress code by displaying visible tattoos.  She got permission from some, but not all, of her coworkers to photograph them.  The employee also began talking to other employees about the dress code being applied unfairly to her and showed them the cell phone photos she had taken.  Her coworkers were generally supportive of her complaint.

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