Employers are asking for trouble if they take adverse action against an employee who questions their dress code in front of other workers, such as issuing a written warning. That became clear earlier this month when the National Labor Relations Board ruled that a Nevada employee’s questioning of rumored changes to his employer’s dress code in the presence of other workers constituted “concerted protected activity” under the National Labor Relations Act.
The employer, Wyndham Resort Development Corp., originally maintained a “resort casual” dress code for its employees. Under that code, many of the male sales representatives wore “Tommy Bahama” style shirts, with a flat hem at the bottom that is split on the sides. Wyndham did not require the sales representatives to tuck those shirts into their pants.
When a rumor began circulating that Wyndham would soon be requiring the male sales representatives to tuck in their shirts, some, if not all, of the male sales representatives were upset by the rule change. Employee Gerald Foley learned of the rumor as he was returning from a vacation and asked Rodney Hill, the VP of in-house sales, about the change.
Two of Foley’s co-workers were present when he asked Hill about the new “tuck-in” rule, and as the discussion continued, more stopped by to listen in. When Hill confirmed the change, both Foley and one of the co-workers became agitated. Foley wound up getting a written warning for his behavior. A few days later, he was discharged.
The NLRB concluded that Foley’s decision to question a newly announced rule affecting all of his male colleagues, in the presence of several of those colleagues, constituted concerted activity, and that the written warning he was issued was unlawful.
Here’s a link to the NLRB’s written summary of the case where you can also download the full decision.
