A Court of Appeals Weighs In On Workplace Photography

The Fourth Circuit Court of Appeals (covering Maryland, North Carolina, South Carolina, Virginia, and West Virginia) just issued a decision upholding a ruling by the NLRB that a policy banning employees from using a cell phone to photograph other employees infringed on “protected concerted activity.”  

After getting a really bad haircut, a supply clerk at a long-term care facility in North Carolina decided to wear a hat to work.  Her supervisors informed her that her hat violated the company’s dress code, yet she refused to remove the hat, and instead claimed that other employees were allowed to wear hats without a problem.  

The employee decided to document the alleged inequitable enforcement of the dress code by speaking with co-workers who “expressed support for her grievance.”   She also used her cell phone to take pictures of other employees who, she claimed, were violating the dress code without being disciplined.   After investigation and discussions with the employee, the company terminated her employment for violating a policy that prohibited taking pictures inside the office without authorization.

A complaint was filed with the NLRB, which determined that the company violated the employee’s right to engage in “protected concerted activity.”   The NLRB found that while the issue “started as an individual complaint,” it ultimately “evolved into a campaign” by the employee to have the dress code enforced fairly.   The company, on the other hand, argued that the employee’s motivation “sounded purely in self interest,” rather than consisting of protected concerted activity.

On appeal, the Court of Appeals reviewed the various definitions and standards applicable to this issue, and of which I have previously provided an outline.  The Court upheld the NLRB’s decision, ruling that the employee’s use of social media (i.e., taking pictures with her cell phone) was protected conduct because it was “part of the res gestae of her overarching grievance about dress-code enforcement.”   In other words, the use of social media was the means by which she was able to engage in, and support, her protected concerted activity.

Employer Take Away:   What should you as an employer take away from this development?   

First, it is still important to have workplace policies.  But those policies cannot be overbroad and impermissibly infringe on rights protected by law.   As this court suggests, a blanket policy such as “you cannot photograph other employees or company property” may be overbroad in certain circumstances.

Second, even if the policy is not unlawful on its face, this court seemed persuaded by the fact that enforcement of the policy was inconsistent:  “The company’s utter failure to enforce its picture-taking policy militates against a finding that [the employee’s] conduct removed her from the aegis of the NLRA.”   Consistent enforcement is equally as important, if not more, as creating the policy in the first place.

The NLRB will continue to rule on the interplay between social media and an employer’s right to control its workplace, and courts will now become more involved in the process.  We will continue to monitor developments and report back to you.

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.