On April 20, 2012, National Labor Relations Board (NLRB) Administrative Law Judge Arthur Amchan found that MikLin Enterprises, Inc, a franchisee that owns 10 Jimmy John’s sandwich shops in the Minneapolis-St. Paul area, unlawfully fired six workers last year when they protested a sick leave policy.
The charge, tried in February 2012, claimed that the restaurant fired the workers after they posted flyers stating customers may get sick eating at Jimmy John’s because the restaurant does not offer paid sick leave. In fact, employees were disciplined if they called in sick and could not find a replacement.
According to the NLRB charge, Jimmy John’s Rule #11 in the 2010 employee handbook states: “Find your own replacement if you are not going to be at work. We do not allow people to simply call in sick! We require our employees and managers to find their own replacement! NO EXCEPTIONS!”
In March 2011, employees asked MikLin Enteprises to provide paid sick leave and change the policy; the company refused. After that refusal, the flyers were posted. Two days later, six employees who posted the flyers were fired.
The company claimed that a “new” policy began in March 2011, which said employees are “expected to be at work on time or find a suitable replacement for their scheduled shifts.” Judge Amchan ruled that this was not a substantial policy change.
Judge Amchan found that the flyer posting was protected because it was “part of an ongoing labor dispute, and that the languages and images used did not cause the employees to lose their protection.” He also found that Rob Mulligan, one of the owners of MikLin, violated labor law by encouraging his employees to remove the flyers.
The ruling stated that “finding a replacement may present a significant burden to an employee who is sick enough to miss work (particularly one who is vomiting or is experiencing diarrhea).” The judge also found that “the lack of paid sick leave provides a powerful economic incentive for employees to work when ill and to conceal illness that would exclude them from work if that is possible. Furthermore, it is at least arguable that Respondent’s sick leave policy subjects the public to an increased risk of food borne disease.”
There have been many instances of foodborne illness outbreaks caused by ill employees. In fact, the Centers for Disease Control and Prevention estimates that 20% of foodborne illness outbreaks are caused by “transmission of pathogens from food workers to the food they handle.” The CDC’s Food Worker Study concludes by saying that “policies that encourage workers to tell managers when they are ill and that help mitigate pressures to work while ill could reduce the number of food workers who work while experiencing vomiting or diarrhea.”
The state of Minnesota has statutes that require food workers to avoid work if they have diarrhea or vomiting. There are no statutes that restrict work if an employee has “any other type of illness”.
The employees are to be reinstated and awarded back pay.
Miklin Enterprises plans to appeal the ruling. The entire appeals process can take a couple of years.
