Stupid HR Allows the NLRB to Extend Its Reach in the Workplace

by Michael Haberman on November 17, 2011 · 0 comments

Friend, fellow blogger and employment attorney Jon Hyman wrote an interesting post entitled Regulating workplace photography? Think again, says one federal court. Jon talks about how the NLRB continues to extend its reach in the workplace with interpretations of what constitutes “protected concerted activity.” The case he discusses is that of NLRB v. White Oak Manor (4th Cir. 9/22/11).

The facts of this case deal are “White Oak Manor, a long-term care facility, maintained a policy against taking pictures inside its facility without prior written approval. Nicole Wright-Gore, a supply clerk, filed a grievance over discipline she received for wearing a hat in the workplace. To document her belief that she had been unfairly disciplined for a dress code violation, she took pictures of her fellow employees, also wearing hats but un-disciplined. When the employer learned of the photographs, it terminated her.” Naturally the employee was unhappy and filed a complaint ultimately with the National Labor Relations Board. In going to court an Administrative Law Judge and an appeals judge all agreed that Ms. Wright-Gore had been terminated for engaging in protected concerted activity.

In reading this case, and I suggest you do, you will discover that the major reason White Oak Manor lost this case was because of stupid HR actions. They had two policies in place that they did not enforce consistently and opted to enforce them in a single case. They had a dress code policy that prohibited hats and another that prohibited taking photographs without permission. Wright-Gore was able to show that other employees both wore hats and took photographs of each other.

Although Wright-Gore did violate company policies the poor way in which her wrong-doing was handled allowed the NLRB to get involved and weigh in on the use of technology in the workplace as a “protected concerted activity.” As Jon Hyman says “As the agency (and now courts) become more involved in these issues, the rules governing what you can and cannot regulate regarding employees’ use of social media and other technologies in the workplace will continue to evolve. For now, the best course of action may be to err on the side of caution in all but the most obvious of cases….”

The major human resources lesson here is CONSISTENT AND WELL REASONED APPLICATION of your policies and procedures.

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