Thursday, November 10, 2011

Regulating workplace photography? Think again, says one federal court

This time next week, I’ll be in San Diego presenting on workplace social media issues at the 2011 Human Resources & Employer Compliance Summit. If past presentations are any predictor, I’ll be spending a lot of time answering questions about the NLRB’s intrusions into this area. NLRB v. White Oak Manor (4th Cir. 9/22/11)—while not a social media case per se—is a great example of how workplace technology and social media issues can arise under the guise of protected concerted activity.

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.

In reviewing Wright-Gore’s unfair labor practice charge, the NLRB concluded that she engaged in protected concerted activity for which she was discharged: “a joint discussion of the unfairness of the dress code, … seeking a change in the enforcement of the dress code.” On appeal, the 4th Circuit agreed:

Wright-Gore’s complaints about White Oak's disparate enforcement of its dress code are protected under the NLRA…. Wright-Gore's documenting of the problem through photography is similarly protected conduct…. Because Wright-Gore’s conversations were initiated to induce group action—she explained that she spoke with other employees "[t]o get their support so I could go to management…,”—they constitute concerted activity.

The NLRB continues to use social media to expand the definition of protected concerted activity. 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, and to consult with labor counsel well-versed in social media issues in everything else. 

[Hat tip: Social Media Employment Law Blog]