A recent NLRB decision may have employers scratching their heads as it seems to prohibit business owners from firing employees for telling customers that the food they prepare might make patrons sick.
A Minnesota Jimmy John's sandwich franchise has been ordered to rehire workers that had put up posters "suggesting sandwiches were made by sick workers, calling their protests protected speech." According to Inside Counsel, these posters were part of a 2011 protest in response to refusal by management to give employees paid sick days.
How can your business legally deal with these types of protests?
Posters Were Protected Speech
The National Labor Relations Board (NRLB) found that in the case of the fired Jimmy John's employees, the posters (which asked customers if they could tell the difference between a sandwich made by a healthy or sick employee) were protected speech. While most private companies can fire employees at-will for just about any reason, there are various illegal reasons for terminating an employee.
Among them is retaliating against an employee for exercising or attempting to exercise a legal right or privilege. Under the National Labor Relations Act, employees have the right to discuss working conditions and the terms of their employment without fear of termination. Employees even have the right to complain that they aren't being paid enough.
In its decision, the NLRB determined that while the posters had the side effect of making Jimmy John's look bad, their main purpose was to gain support for the union effort to get employees paid sick days. Speech related to ongoing labor disputes can lose protection if it is untrue or malicious, but the Board found that the claims about Jimmy John's sick day policies were (with some hyperbole) pretty much spot-on.
How to Avoid Sick Day Conflicts
There is no nationwide law that requires private business owners to offer paid sick days to their employees. However, it is becoming a reality in many states and cities as most Americans feel it is important. In defusing sick day conflicts, you may want to consider:
- Allowing employees to call in sick. This particular Jimmy John's franchise did not allow employees to call in sick at all.
- Offer unpaid sick time. Productivity and morale will be higher when your employees aren't plague carriers.
- Comply with the FMLA. Your business may need to comply with FMLA requirements for serious illnesses.
Ignoring employees' requests for sick leave may lead to some stomach-turning results. If you have questions about your sick leave policy, you may want to speak with an experienced employment lawyer near you.
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- NLRB: Jimmy John's Can't Fire Workers for Icky Sick-Leave Protest (Businessweek)
- NLRB Won't Fight 'Poster Rule' Decisions (FindLaw's Free Enterprise)
- Workplace-Access Policy Needs a Section 7 Exception: NLRB (FindLaw's Free Enterprise)
- NLRB Puts Brakes on Mercedes-Benz Policies That Impeded Unions (FindLaw's Free Enterprise)