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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