Monday, March 28, 2016

Can You Spot a Sick Sandwich? Jimmy Johns Fires Employees

A Jimmy Johns shop required employees to report to work unless they found a replacement for their shift— even when employees said they were sick. The company didn’t change its rule, so employees joined a union organizing campaign. Near the restaurant, they handed out these fliers (see above). The fliers suggested the possibility that a sick worker is contagious to a customer. The employees were fired.

The NLRB ruled that their fliers were protected under federal labor law. Jimmy Johns appealed.
Now, a federal appeals court has sided with the workers and the NLRB. Judge Jane Kelly wrote for the court that exaggerated rhetoric is common in labor disputes and was protected during a publicity campaign by Minnesota restaurant workers.

The test for protected speech is whether employees are “malicious,” meaning that they invent damaging lies about an employer’s products or services. In this case, the evidence showed that the shop required employees to report to work while sick. Judge Kelly’s opinion said the NLRB had sufficient evidence to conclude the employees’ claims about the company’s leave policy weren't intentionally false or maliciously motivated.

Think about how many paid sick days this store could have granted instead of spending a small fortune litigating before an administrative law judge, the NLRB in Washington, and the Eighth Circuit Court of Appeals.



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