Fourth Circuit Affirms Protected Concerted Activity Claim

The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee's protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee. The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code. The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats. The employee enlisted other employees to help her document dress code violations as well. The employee was subsequently terminated. Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property. Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy. Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy. Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy. The Court thus reached the common-sense conclusion that the employee's actions did meet the standard in the NLRA for protected concerted activity.