Six employees of MikLin Enterprises Inc., a franchisor of 10 Jimmy John’s sub sandwich locations in Minneapolis-St. Paul, were terminated for their involvement in the creation and dissemination of posters in or near store locations during a unionizing campaign. The posters contained side-by-side images of Jimmy John’s sandwiches stating “Your Sandwich Made By A Healthy Jimmy John’s Worker” and “Your Sandwich Made By A Sick Jimmy John’s Worker.”
Additionally, The posters stated, “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.” The Eighth Circuit U.S. Court of Appeals held that even though the employees’ goal of obtaining paid sick leave was a protected activity, “communications connected to a labor dispute are unprotected when they constitute a ‘sharp, public, disparaging attack upon the quality of the company’s product and its business policies.’ ”
See MikLin Enterprises Inc. v. NLRB, Case Nos. 14-3099 and 14-3211 (8th Cir. July 3, 2017).
Impact: While “protected speech and activities” appear to have received significant expansion and protection in this era of social media, this case indicates it is not without limits.
Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below or email firstname.lastname@example.org.