An appeals court recently upheld the NLRB's decision that a Jimmy John's franchisee violated the NLRA in terminating and disciplining employees who posted fliers implying customers might get sick after eating sandwiches there.

Since 2012 the NLRB has stepped up enforcement of the longstanding doctrine that employers may not take actions to try and deter employees from complaining about terms and conditions of employment.

With respect to disciplining employees for making social media posts that violate company policy, the NLRB "holds that an employer may not discipline an employee in response to protected activities even if the employee's conduct arguably crosses the line into prohibited activities such as disparagement or use of foul language."

In this case, the company and its union were engaged in a labor dispute over its sick leave policies. The NLRB found, and the 8th Circuit affirmed, that the employer violated the NLRA by firing employees for making posts insinuating that the public is at risk for getting sick when a food worker does not have paid sick time and must come to work ill. 

The board and court both found that the post was protected as it only "suggests the realistic potential for illness resulting from the handling of food by workers who come to work sick."

The 8th Circuit court was able to support the NLRB's position in this case "because there was a clear connection on a number of fronts" between the statements about employees not being able to call out sick and the labor dispute over a desire for sick leave.

In considering disciplinary action based on employees' statements in public forums, employers must keep in mind that Section 7 of the NLRA generally protects this type of action. 

In addition, the employer must examine whether the issue being raised by the employee is a term or condition of employment before terminating or disciplining any employee for putting issues before the public or disclosing company information.