Under the National Labor Relations Act, employers can’t interfere with their workers’ right to engage in “protected concerted activity” — in other words, their right to organize and as a group push for better pay and working conditions. Employers who fail to abide by this law risk fines and other punishment.
However, a recent decision from a federal appeals court draws a line between protected concerted activity and disloyalty that an employer isn’t required to tolerate.
In that case, the owner of a group of Jimmy John’s sandwich shop franchises in greater Minneapolis fired six employees and disciplined three other workers for staging a public relations campaign to call attention to the company’s lack of paid sick leave for employees.
As part of the campaign, posters were posted on store bulletin boards depicting side-by-side pictures of identical sandwiches, one supposedly made by a healthy worker and the other by a sick one. The caption read, “Can’t Tell The Difference? That’s Too Bad Because Jimmy John’s Workers Don’t Get Paid Sick Days.”
The workers filed a charge under the NLRA and both an administrative judge and the National Labor Relations Board found that the punishment was, in fact, illegal.
But the federal appeals court concluded that the employer was justified. According to the court, evidence showed that the information on the poster was “materially false and misleading” and accusing a restaurant of selling unhealthy food was the “equivalent of a nuclear bomb” in a labor dispute. These kinds of attacks on an employer’s reputation and products are not protected by the NLRA, the court ruled.
It’s worth noting that another court might see the issue differently. So while the decision shows that the NLRA doesn’t give employees free rein to trash their employer in the name of organizing, the law in this area is obviously tricky. That’s why it’s important to consult with a labor and employment attorney before taking action against workers for anything that might be considered organizing activity.