“Orange Workers” Contest Firing Over Shirt Color

Nine people who lost their jobs after wearing orange to work are challenging their employer and asking the federal government to rule that their firings are a violation of labor law.

Though some of the former employees of the Law Offices of Elizabeth R. Wellborn said they just happened to be wearing orange on March 16, most apparently wore the color as a sign of silent protest against changes to office rules.  New policies prohibited employees from getting coffee from the break room while on the clock, or from speaking to one another over the walls of their cubicles, according to Donna Ballman, the Florida attorney and author who is representing the nine “orange workers” before the National Labor Relations Board.

Employees dressed in orange “were called into a conference room and told that if anyone was wearing orange for an innocent reason, they could talk to management after the meeting,” Ballman said. Officials at the law office said that “they understood that people wearing orange shirts were protesting working conditions … and that they should pack their bags and leave,” she said. The Florida-based Law Offices of Elizabeth R. Wellborn firm has said it’s not commenting on the case. 

Donna Ballman, the lawyer for the employees

Of 14 fired employees, three have been re-hired, two have opted not to file complaints, and Ballman is representing the other nine. Janice Doble, one of the people fired, said she and several others wore orange because of after-work happy hour plans, and not as part of any protest.

Like every U.S. state except Montana, non-unionized workers in Florida are employed “at will,” which means that they can be fired for virtually any reason – with a few key exceptions. Employers can’t discriminate against protected classes such as race and gender, must comply with any contracts they sign, and are obligated to follow federal labor laws, for example.

In the eight complaints filed so far, the“orange workers” contend that those labor laws were violated when they were axed. A ninth worker engaged Ballman’s services on Friday, and that complaint has not yet been submitted to the National Labor Relations Board.

“I believe I was discharged for engaging in and/or for being suspected of engaging in concerted activity for the purpose of mutual aid or protection with coworkers,” according to language that was duplicated across all eight complaints. “In addition, my former employer imposed restrictive covenants on me which I believe violate my rights.”

“We hope our case will help change the law for other Americans,” said fired worker Melony McLeod. “Nobody should be fired because of the color of their shirt. It’s wrong.”

Protected T-shirts

Last year, the National Labor Relations Board ruled that AT&T violated federal labor protections when it suspended 183 workers who visited customers while wearing T-shirts that said “Prisoner of AT$T” on the back and contained other images and messages related to a union-related dispute.

Mark Theodore

“It is always amazing to learn that conduct like this, which is designed to harm a company by sullying its reputation in the community, can somehow be considered ‘protected’ under the law,” California employment and labor lawyer Mark Theodore wrote in an assessment of the AT&T dispute.

The AT&T decision “illustrates the peril employers face when trying to protect the business during a labor dispute,” wrote Theodore, who is a partner at Proskauer Rose LLP in Los Angeles.

But the fired “orange workers” were not members of any labor group, and did not appear to be involved in creating a union. NLRB has ruled that employers can prohibit shirts that give inaccurate information about their products and services, even during labor disputes. And employers have long been allowed to fire people for dressing inappropriately when those fashion choices are unrelated to collective worker actions.

Nonetheless, Ballman said that she believes circumstances surrounding the “orange workers” firings she will lead the NLRB will rule in favor of her clients. “The National Labor Relations Act applies to almost all workplaces,” she said. She pointed at language in the law that says workers are protected when they engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

“Even if an employee didn’t engage in ‘concerted activity,’ they are protected under the NLRA,” Ballman said. “An employer who fires them for suspicion of engaging in concerted activity is in violation of the law.” 

It’s been historically rare for non-unionized workers to file complaints with the National Labor Relations Board over matters unrelated to forming a union. Ballman, the author of “Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards,” hopes the “orange workers” case draws attention to often-overlooked employee rights.

If you believe your employer has violated the National Labor Relations Act, contact a labor and employment lawyer to review your rights and options.

Own or operate a business and want to be sure to avoid a hearing before the National Labor Relations Board? Read up on working with labor unions.