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In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the en banc decision, the full 8th Circuit refused to enforce the NLRB’s unfair labor practice finding and held that an employer may fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The court emphasized that “allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business” and that the fired MikLin employees made a conscious decision maximize this effect by choosing to launch their attack during flu season. The court added:

“By targeting the food product itself, employees disparaged MikLin in a manner likely to outlive, and also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave, the image of contaminated sandwiches made by employees who chose to work while sick was not one that would easily dissipate.”

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Continue Reading Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.…

Continue Reading “Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies

As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision in Dish Network, LLC probably would have yielded the same result with a full Trump Board, Acting Chairman Miscimarra’s concurring opinion likely signals a future relaxing of the Board’s standards for evaluating whether certain employer policies and employment agreements violate employee Section 7 rights under the National Labor Relations Act (NLRA). In Dish Network, the Board concluded that the employer’s mandatory arbitration policy and agreement violated Section 8(a)(1) of the NLRA. Following its jurisprudence from prior cases decided during the Obama Administration, the Board concluded that the arbitration agreement constituted an 8(a)(1) violation because it “specifies in broad terms that it applies to ‘any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.’” …
Continue Reading NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus…

On February 25, 2014, NLRB General Counsel, Richard F. Griffin, Jr., issued the first General Counsel Memo of the year (GC 14-01) identifying cases that the NLRB’s Regional Directors must refer to the NLRB’s Division of Advice for “centralized consideration” and to “enhance our ability to provide a clear and consistent interpretation of the [National Labor Relations] Act.” The list is divided into three groups, two of which should be of particular concern to employers. The first group includes issues that reflect General Counsel initiatives or areas of the law and labor policy that are of “particular concern” to him. The second group includes what he describes as “difficult legal issues that are relatively rare in any individual Region and issues where there is no governing precedent or the law is in flux.” Finally, the third group includes matters that have traditionally been submitted to the Division of Advice.
Continue Reading NLRB General Counsel Announces Priority Matters To Be Submitted For Advice

Class action waivers in arbitration agreements, when used correctly, are an extremely effective tool for employers to reduce exposure on employment claims. So, naturally, the current National Labor Relations Board (NLRB) will not support them. Having lost before the Fifth Circuit Court of Appeals on their argument that Section 7 and Section 8 of the National Labor Relations Act (NLRA) categorically prohibit explicit class action waivers, the NLRB remains undeterred. Here is what the NLRB is up to now.
Continue Reading The National Labor Relations Board Continues Its Hostility Toward Class Action Waivers in Arbitration Agreements

One of the most significant risks to business in recent years has been the proliferation of class action employment-related lawsuits. Class action claims have been especially popular with plaintiff’s lawyers pursuing federal Fair Labor Standards Act wage claims. A class action lawsuit can mean huge costs for defense and damages. Some employers have attempted to manage the risk by having employees sign agreements requiring that they pursue employment law claims against the company in arbitration, rather than in court. Sometimes employers include in the arbitration agreement a specific waiver of the right to pursue class action claims in court or in arbitration.
Continue Reading Fifth Circuit Court of Appeals Knocks Down NLRB Decision: And, in Doing So, Supports Employer Effort to Avoid Class Action Claims

The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging…