Protesting dress code was protected under NLRA

A sales representative’s angry questioning of a new dress code to a vice president, in front of other sales reps, was protected concerted activity under the National Labor Relations Act (NLRA), ruled the National Labor Relations Board. Male employees were accustomed to wearing “Tommy Bahama” style shirts, in keeping with the employer’s “resort casual” dress code. Shortly before a sales team meeting, a vice president told one of the employees that the company was going to start requiring the men to tuck in their shirts. The employee received a written warning and was later discharged on the basis that he challenged the policy in front of the other sales reps.

The Board ruled that his actions were “protected” because they related to a working condition and they were “concerted” (i.e., for mutual aid and protection, not a selfish individual pursuit) because the employee used the terms “we” and “us” rather than “me” or “I,” the policy affected all of the male sales reps, and he raised the issue in front of his affected co-workers (Wyndham Resort Development Corp., NLRB, Mar. 2011).

Tips: Don’t let anger overcome your evaluation of protections under the NLRA when an employee protests wages, hours, or working conditions. Terminating an employee for such an action can be an expensive mistake. The Board has recently instituted new procedures for calculating back pay by compounding interest daily. For further guidance on when an employee’s complaint may be protected by law, see our Legal Guide, “Handling Workplace Protests and Complaints” (1238).