Can employees protest a company sick leave policy with an internet meme that suggests the company’s food is not safe? Not according to a recent Eighth Circuit decision. MikLin (doing business as Jimmy John’s in Minnesota) recently prevailed in a case over whether workers that publicly complained about the company’s sick leave policy were protected under the National Labor Relations Act (NLRA). MikLin’s policy mandated that employees find their own replacement if they could not work, while missing work also led to disciplinary action. The Industrial Workers of the World (IWW) had been trying to unionize the stores and highlighted the issue of paid sick leave during the organizing campaign.

The Employees’ Controversial Poster and Protest

Four employees (the Poster Employees) protested this sick leave policy by creating a meme that features two identical side-by-side photographs of a sandwich. The sandwich on the left-hand side was labeled “Your Sandwich Made by a Healthy Jimmy John’s Worker,” while the one on the right-hand side said “Your Sandwich Made by a Sick Jimmy John’s Worker.” The poster went on to say “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.” The poster didn’t stop there, adding “We Hope Your Immune System Is Ready Because You’re About To Take the Sandwich Test…” Still not finished, the poster then asked readers to go to a website to “Help Jimmy John’s Workers Win Sick Days.”

The Poster Employees met with managers and reported that employees were working while sick because they could not find replacements or afford to take unpaid time off. Ultimately, some of the Poster Employees were fired, while others received written warnings.

The Early Rounds of the Dispute

After the employees were discharged and disciplined, IWW filed three unfair labor practice charges alleging that MikLin violated Sections 8(a)(1) and (3) of the NLRA which protects workers engaged in unionization efforts. However, employees lose the act’s protection if the employer fires an employee for engaging in concerted activity that is detrimentally disloyal. The Administrative Law Judge (ALJ) issued a recommendation that MikLin had committed most of the allegations in the complaint.

MikLin filed an exception to the ALJ’s decision, asking the National Labor Relations Board (NLRB) to change the decision. The board affirmed the ALJ’s findings. The majority agreed that the posters were sufficiently related to a protected, ongoing labor dispute and that there was nothing so “disloyal, reckless, or maliciously untrue so as to cause the employees to lose the Act’s protection.”

Upon Miklin’s appeal, a three-judge panel on the Eighth Circuit agreed with the board. Miklin asked the entire Eighth Circuit to weigh in.

The Last Word and Takeaways

The full Eighth Circuit recently reversed, holding that MikLin did not violate the Poster Employees’ union organizing rights. The court found that even though the Poster Employees were fired for publicly protesting the company’s sick leave policy, the posters were disloyal and not protected. So what have we learned?

• Employers should keep in mind that when employees are raising concerns about the terms and conditions of their employment, they are usually protected by Section 8(a). This applies to employers who do not have a union—even if there is not union organizing afoot.
• There are limits to how employees can publicly protest. This poster was fairly extreme. If the Poster Employees had been a little more restrained, they might have won.