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Employers Beware: Employees May Disparage You Without Risking Their Jobs


Employers Beware: Employees May Disparage You Without Risking Their Jobs

On March 25, 2016, the U.S. Court of Appeals upheld a finding by the National Labor Relations Board (NLRB) that Jimmy John’s sandwich makers were wrongfully terminated after posting hundreds of signs insinuating that the sandwiches they make could make customers sick. According to the NLRB and the court, those employees were engaging in concerted activities protected under the National Labor Relations Act (NLRA).  MikLin Enterprises v. NLRB, Case No. 14-3099 (8th Cir. Mar. 25, 2016).

The Facts

MikLin Enterprises owns and operates ten Jimmy John’s franchises in Minnesota. Employees at the stores were upset that the company did not provide any paid sick leave and also required employees calling off shifts to find their own replacements. This dispute intensified after the Industrial Workers of the World (IWW) lost an election in which it sought to represent the employees.

The employees insisted that the attendance policy forced them to work while sick. After the failed attempt to have the IWW certified as their representative, several employees placed posters in public areas near the various stores. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. The caption above one sandwich read: “Your Sandwich Made By A Healthy Jimmy John’s Worker.” The caption over the second sandwich read: “Your Sandwich Made By A Sick Jimmy John’s Worker.” The caption below the pictures read:

"Can’t Tell the Difference? That’s Too Bad Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot, We Can’t Even Call In Sick. We Hope Your Immune System Is Ready Because You’re About To Take the Sandwich Test… Help Jimmy John’s Workers Win Sick Days. Support Us Online At..."

MikLin managers removed the signs. Employees then met with one of owners and expressed their dissatisfaction with the sick leave policy. They claimed that employees were working while sick, and they asked for paid sick leave. They also told the owner if there was no further discussion of the sick leave policy, they would put up more posters around the city.

Ultimately, the employees followed through with their threat and put up more posters, including the owner’s phone number. Simultaneously, the IWW issued a press release detailing the sandwich poster campaign and expressing the employees’ concern for the health of MikLin’s customers. In response, the employer fired six employees and issued final warnings to three others. 

In the course of the above, an employee established a “Jimmy Johns Anti-Union” Facebook page. Posts on this page, by supervisors and employees, included derogatory remarks about the organizing efforts and the employees involved. Additionally, the owner made posts encouraging people to take down any sandwich posters they saw.

The Case

The IWW filed unfair labor practice charges with the NLRB contending that the firings, disciplines and postings violated the employees’ rights under the NLRA. The NLRB agreed, finding that the posters and press release were related to an ongoing labor dispute and therefore were protected concerted activities. While reaching this conclusion, the Board also found that the posters and the press release were not “so disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection.” The employer appealed to the Eighth Circuit Court of Appeals.

The Eighth Circuit upheld the NLRB, finding that the posters and press release were made in the context of a labor dispute and that the overall message was not materially false or misleading. In response to the employer’s argument that the posters sent the message that eating at Jimmy John’s was a health risk and that the employees’ methods were disloyal and publicly disparaging to the employer, the court held that the employee’s language was not intended to degrade or humiliate, but was an attempt to solicit public support and was tied to the sick leave dispute. The court also emphasized that exaggerated rhetoric is common in labor disputes and protected under the NLRA. 

The court also found that the owner’s and supervisors’ Facebook postings violated the NLRA. It held that the owner’s posts were not simply expressions of his opinion, but that they also could be viewed as threats of reprisal for employees who did not remove the posters. The supervisors’ Facebook postings also violated the NLRA, the court held, since as the negative comments and disparaging photos at issue were about the protected unionization and sandwich poster campaigns. 

What It Means For Employers

This case both emphasizes a need to review policies and practices at all levels of a business, and highlights the NLRB’s efforts to broaden or reinvigorate the scope of its authority. Accordingly:

  • Non-unionized employers need to be educated on the NLRA, and must be diligent in properly handling unionization efforts.
  • The NLRB may challenge an employer’s policies and practices even where workers are not unionized.
  • Employers should periodically review their policies as the law regarding what is acceptable and unacceptable is evolving, particularly with respect to arbitration agreements, confidentiality policies, disciplinary procedures, email and internet usage policies, and social media policies.
  • Social media continues to be a popular form of communication. Employers must be aware of what can or cannot be communicated on these forums.
  • Offensive rhetoric in the context of union or other concerted activities may be protected by the NLRB, even where it is disparaging or disloyal to the employer or its products. The NLRB will examine whether the conduct or language is tied to any form of protected concerted activity, and may rule against employers who try to manage it. 

In sum, understanding the scope of the NLRA’s protection is becoming more and more complex. Employer actions which, in the past, would never be questioned, are now becoming scrutinized by the NLRB and deemed violations of law. Employers facing such conduct should consult with their attorneys before reacting. Dykema’s labor and employment law attorneys follow these issues closely and are available to provide assistance.