EMPLOYMENT LAW REPORT

NLRB

Firings Over "Sick Day" Flyer May Have Been Unlawful

On November 9, 2011, NLRB Region 18 in Minneapolis issued a Complaint against Jimmy John’s, alleging that six employees were unlawfully discharged in March for engaging in Union and other concerted and protected activities.  The concerted behavior at issue included the employees distributing hundreds of flyers which suggest that Jimmy John’s customers might be eating sandwiches prepared by sick workers (because Jimmy John’s apparently does not provide paid sick time).

The employees filed an unfair labor practice charge with the NLRB, alleging that they were unlawfully terminated for engaging in what they viewed as concerted and protected activity under the National Labor Relations Act (NLRA). Jimmy John’s argued that the distribution of these flyers was not protected by the NLRA.

Region 18 submitted the case to the NLRB’s Division of Advice in Washington, D.C., for its opinion on whether the flyers were protected (in which cases the discharges were unlawful), or whether the flyers were so disloyal the employees lost any protection under the Act (in which case the discharges were lawful). The Division of Advice has taken the view that the employees’ conduct was protected by the NLRA, although it has not released its legal analysis in support of this position.

The NLRB complaint is the first stage in the formal litigation process. If the case does not settle, it will come before an NLRB Administrative Law Judge on January 17, 2012.

Bottom Line

Even though these flyers might have made customers think twice before ordering a sandwich, the NLRB is taking the position that Jimmy John’s could not lawfully discharge the employees for distributing them.  Employers should be extremely cautious when considering whether to discipline or discharge employees who are complaining about their working conditions, even if the employees are making the Employer “look bad.”