What can you do with a disloyal employee?

by Michael Haberman on April 5, 2016 · 0 comments


This is probably the last person you want preparing your food in a restaurant.

This is probably the last person you want preparing your food in a restaurant.

It is a safe bet that most companies have, at some time, had an employee or two that they considered to be disloyal. In most cases the penalty for disloyalty most often applied is termination. Unfortunately today the National Labor Relations Board may disagree with you and that may embolden your employees. This was a lesson a Jimmy John’s franchisee learned the hard way.

“Germ infested” Sandwiches

This whole issue started, according to attorneys Katherine H. Marques and Michael Starr when employees, who had participated in a losing effort at a Jimmy John’s franchise went to the franchise management and requested paid sick leave. The owners of MikLin Enterprises, Inc. tuned them down. According to Marques and Starr “The workers argued that employees were effectively required to work when they were ill, since the company failed to provide paid sick leave and also had a policy of forbidding workers to call in sick unless they found a replacement for their shift.” Upon rejection the workers then started posting hundreds of signs in the area warning patrons that their sandwiches where being made by sick employees. The franchise owners then terminated six employees and issued warnings to three others. Naturally the employees were not happy and since they had already been in contact with a union they reached out and the union helped them file suit with the National Labor Relations Board (NLRB) claiming a violation of Section 7 of the NLRA.

His decision orders the employer to offer reinstatement to those discharged and rescind the written warnings, and to post notices at all of its shops.

Protected concerted activity

The NLRB claimed that the activity the employees engaged in was protected activity. They were working to better their conditions by getting sick pay and by firing and disciplining the employees for this activity the NLRB claimed the company had violated the law. The company disagreed with the finding claiming that what the employees did was so bad and “so disloyal, reckless or maliciously untrue as to lose [NLRA] protection…” As you might surmise an Administrative Law Judge did not agree with the company. He said the employees were indeed protected as their concerted activity was part of an ongoing labor dispute. He ordered the employees to be reinstated with full backpay for any loss of income and benefits. The warning letters for the other employees were to be rescinded and stricken from the files. Additionally the company agreed to rerun the union election, which they originally won. Hmm.. wonder how that will go this time.

Mistakes

In my opinion the company made some mistakes they paid for dearly. First they had some very employee unfriendly policies. They were not adhering to the corporate philosophy espoused by Jimmy John which says “We are very close in our company; we treat others as we would like to be treated. We take care of each other..” I realize that the margins are thin in the sandwich business but I have known owners who are more caring that what this franchise has been portrayed as.

Secondly, I don’t think it is a good policy to require employees to find their own replacements. I think management has abdicated their responsibility by doing so. In the food business where hygiene is critical the company should not require sick workers to prepare food. I certainly don’t want that as a consumer.

The third mistake they made is not being aware of the potential issues they might have with workers who had just engaged in union activity. Anything, such as terminating employees, that could be construed as an unfair labor practice was going to be jumped on right away by the union working with the employees. Awareness and understanding of the NLRA can save a company a great deal of grief. Be careful.

Photo credit: Stockimages


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