employee rights A recent decision of the National Labor Relations Board provides employers with a reason to carefully evaluate disciplining employees who make negative comments about their company’s products. Specifically, on 3/25/2016, the Eight Circuit Court of Appeals confirmed an NLRB decision that a Jimmy John’s franchisee violated the employee rights of six employees when it fired them. The illegal terminations arose out of the Jimmy John’s employees making public complaints about sick leave and tying those complaints to questions about restaurant food safety.

The franchisee, MikLin Enterprises Inc., fired six employees for participating in the publicity campaign. These employees claimed the company’s policy on medical absences compromised the health of the workers preparing customers’ sandwiches.  At issue in the case was a flier that linked worker leave to public health risks. Specifically, union supporters took the dispute public by posting in and near MikLin restaurants fliers that pictured identical sandwiches side-by-side above a message “Can’t Tell the Difference?” The flier further labeled one sandwich as being made by a healthy worker and one by a sick worker. The union supporters asserted that employees didn’t get paid sick days and couldn’t even call in sick. These policies put the public at risk, or so the argument went.

These terminations resulted in an unfair labor practice charge filing with the NLRB. An administrative law judge found the discharges violated Section 8(a)(3) of the NLRA. That section prohibits discrimination due to union activity, and Section 8(a)(1) prohibits interference with employees’ NLRA-protected activity. The Board affirmed this decision in 2014, which was then appealed to the Eighth Circuit Court proceeding. MikLin Enterprises argued the employees had no legal right to make claims it considered false.

Discharge Violated Employee Rights and Found to be Unlawful by NLRB

On appeal, MikLin argued the sandwich fliers were false because employees were not precluded from calling in sick. But the Court noted:

  • There was a written company rule that provided, “We do not allow people to simply call in sick;”
  • The company required employees to find their replacements if they were ill; and
  • There was also evidence that the employees were told to report to work while sick.

Accordingly, the Court agreed with the NLRB that there was sufficient evidence to conclude the employees’ claims about MikLin’s leave policy weren’t intentionally false or maliciously motivated.

The dissenting judge, however, disagreed. That judge believed that the NLRA did not protect “calculated devastating attacks upon an employer’s reputation and products.” In this regard, he reasoned the “dramatic poster allegations of food contamination were not necessary to aid the employees’ labor dispute.” And, instead, “the employees punished MikLin by urging customers not to buy its sandwiches out of an unwarranted fear of becoming ill.”

Closing Thoughts on Employee Rights

Jimmy John’s as a brand has taken a few unflattering hits in the last year on its employment policies. In one example, we covered it here, Jimmy John’s franchise came under fire for requiring its low-wage sandwich makers and delivery drivers to sign non-compete restrictions. One concern we had about Jimmy John’s use of non-compete restrictions for its sandwich and delivery is that rarely if ever should an employer have a “one-size-fits-all” non-compete policy.

Similarly, companies can’t assume a blanket policy for disciplining employees who are critical of company products or services will be lawful. In fact, this opinion shows how much controversy surrounds whether employee rights should be given legal protections when it comes to disseminating negative publicity about their company’s products. Accordingly, employers need to consider carefully whether such dissemination is protected activity.

For more information about investigating employee misconduct or responding to an unfair labor practice charge, contact employment attorney Jason Shinn.