Employees’ “Sandwich Test” Sick Day Protest Unprotected, the “Equivalent of a Nuclear Bomb”

Posters hung in public places by fast food employees protesting their lack of sick days demonstrated “such detrimental disloyalty as to provide ‘cause’” for their discharge, a federal appeals court sitting en banc held recently. MikLin Enterprises, Inc. v. NLRB (8th Cir. July 3, 2017).

A union had been trying to organize employees of MikLin Enterprises, Inc., a Jimmy John’s Minnesota franchisee. During flu season, a group of employee/union supporters hung posters encouraging readers to support their effort to “win sick days.”

The poster featured photos of two identical sandwiches, noting that the sandwich on the left had been made by a “healthy Jimmy John’s employee” while the other had been made by a “sick Jimmy John’s employee.”  The poster stated that it was “too bad” if a reader could not tell the difference between the two sandwiches “Because Jimmy John’s Workers Don’t Get Paid Sick Days. Shoot. We Can’t Even Call in Sick.” The poster added: “We Hope Your Immune System is Ready Because You’re About to Take the Sandwich Test.”sandwich-311262_640-1

The poster’s “enduring image was a MikLin-made Jimmy John’s sandwich that, although appearing like any other, was filled with cold and flu germs,” the court said. “Allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business,” the court said, citing another court’s observation that such allegations are “the equivalent of a nuclear bomb in a labor-relations dispute.”

The National Labor Relations Board had held that the discharges were unlawful because the employees were engaged in protected concerted activity for their own mutual aid and protection. A three judge panel of the Eighth Circuit had upheld that decision. See my post here.

But the Eighth Circuit en banc court disagreed.  The NLRA ”does not protect such calculated, devastating attacks upon an employer’s reputation and products,” the court said.

A Week of Paid Sick Leave Vetoes

Maryland, Minnesota and now Nevada. Three paid sick leave-related vetoes within seven days.

On May 25, 2017, Maryland Governor Larry Hogan vetoed the PSL bill passed by the state General Assembly. Five days later, Minnesota Governor Mark Dayton vetoed the bill passed by the Minnesota legislature which would preempt municipalities from enacting a sick leave law, among other employment regulations. Then, on June 1, Nevada Governor Brian Sandoval vetoed the PSL bill passed by the legislatures.dislike-157252

My posts about the Maryland and Minnesota vetoes are here and here.

Governor Sandoval’s veto means that the wait for PSL State Number Eight continues. I had speculated previously that the stars seemed aligned for a PSL law in Rhode Island given that the governor is a Democrat, Democrats have overwhelming majorities in both the House and the Senate, and neighboring Connecticut and Massachusetts already have PSL laws.   However, the Rhode Island House bill remains in committee.

It has been seven months since any paid sick leave bill has passed anywhere in the country, although five PSL laws become effective July 1, 2017 (Arizona, Cook County, Chicago, Minneapolis and St. Paul).

As Deadline Looms, More Cook County Sick Leave Opt Outs

The end is near. Cook County political subdivisions have just one more month, until July 1, to opt out of the county Earned Sick Leave Ordinance. Add five more to the nix list: Berkeley, Harwood Heights, Niles, Northbrook and Summit.


About three dozen of the approximatley 130 municipalities within the county –almost 30%–have opted out. More will do so before the County ordinance’s July 1, 2017 effective date.

I have listed the Cook County “opt-outs” on the PSL Laws and Resources page of my blog, just below the link to the Cook County Ordinance.

Cook County enacted the ESL Ordinance in October 2016. Generally, it requires covered employers to allow employees to accrue one hour of paid sick leave for every 40 hours worked. My posts about that Ordinance are here and here.

Georgia Paid Sick Leave Law Does Not Require Paid Sick Leave

No, Georgia, is not State Number Eight to require employers to provide paid sick leave law.  Rather, a new Georgia law regulates the paid sick leave policies of employers that choose to provide paid sick leave.

The law requires an employer with at least 25 employees to allow an employee to use up to five days of earned sick leave to care for an immediate family member. That latter term includes an employee’s “child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee’s most recent tax return.”


The law states that it does not “require an employer to offer sick leave.” It also states that it does not create a new cause of action against an employer so it is unclear how this law will be enforced.

Other states, including California, Connecticut and Illinois, have enacted similar laws. Georgia’s law is unique in that it exempts any employer “that offers to their employees an employee stock ownership plan.” Of the many laws dealing with paid sick leave, and the many laws exempting certain employers, I do not recall ever seeing this exemption. It is unclear to my why an employer’s providing a benefit that does not deal with paid sick leave would exempt an otherwise covered employer from a paid sick leave law.


Litigating Paid Sick Leave in the Land of Enchantment

Two paid sick leave lawsuits are pending in New Mexico, the Land of Enchantment. Both deal with the effort to have a voter referendum in Albuquerque in October 2017 on a local Healthy Workforce Ordinance (HWO).


One lawsuit deals with how the HWO must be presented on the ballot. A district court judge ruled last fall that the entire seven page ordinance must be on the ballot; a summary was not sufficient. An appeals court earlier this month rejected the HWO proponents’ request that an appeals court review that issue while the case is still pending in the district court. Apparently the seven page ordinance could fit on a double-sided one page ballot, according to one report. Watch for arguments by HWO opponents concerning appropriate margins and font size.

In the other lawsuit, a cadre of business interests claim that the HWO is unconstitutional “logrolling” because it combines multiple issues on the ballot, depriving voters of the opportunity to vote separately on each one. My post on that lawsuit is here.  Last December, an Arizona court had rejected an analogous “single subject” argument challenging the state-wide PSL ballot initiative held last November. Earlier this month, a Washington court reached the same result in a case challenging its state-wide PSL ballot initiative held last November.  My posts on those decisions are here and here.

On a Land of Enchantment PSL preemption note, the Uniformity of Employment Law Terms had been introduced in the New Mexico Senate this legislative term but died in committee when the session ended.  Senate Bill 488 would have prevented political subdivisions from enacting paid sick leave laws, among other employment terms.

Strike Two for Pittsburgh’s Paid Sick Days Act

An appellate court has affirmed a lower court’s decision that Pittsburgh did not have the authority to enact its Paid Sick Days Act and invalidating that law.


In its 6-1 decision, the Commonwealth Court of Pennsylvania rejected the City’s argument that the City had the authority to enact the law under the Disease Prevention and Control Law because that law applies only to municipalities with boards or departments of health. The City of Pittsburgh has neither.

Also, the court rejected the argument that the City had the authority to enact the Paid Sick Days Act under the Second Class City Code because that code did not impose any affirmative obligation on the city to enact such law.

The dissenting judge stated that Pittsburgh has the right to protect the health and safety of its residents and that the Paid Sick Days Act was an exercise of that right.

The City and Local 32 BJ must decide whether to appeal the decision to the Supreme Court of Pennsylvania.

The Wait for Paid Sick Leave State Number Eight Does Not Abate

Nearly six months ago, Arizona and Washington became the sixth and seventh states to enact PSL laws.  Since then, more than a dozen PSL bills have been introduced into state legislatures. None has been enacted, as yet.

Maryland was a front-runner to be State Number Eight. The General Assembly, with Democratic majorities in both chambers, passed a PSL bill. But Republican Governor Hogan has called it a “job killer” and said it was “dead on arrival.”  If he vetoes the bill, the General Assembly cannot vote to overturn it until January 2018, when it reconvenes. That’s a long wait for a State Number Eight.

Reight-33992_1280hode Island was another front-runner. With much fanfare, a cadre of legislators announced support for the PSL as part of their Fair Shot Agenda. With a Democratic Governor, overwhelming Democratic majorities in both the House and the Senate, and Connecticut and Massachusetts as PSL neighbors, the only issue seemed to be wheher Rhode Island or Maryland would pass a PSL bill first. The Rhode Island bill has been in committee since being introduced in February.  Unless the PSL bill moves, the PSL aspect of the “Fair Shot” could become “No Shot.”

Hawaii and Nevada are also possibilities for State Number Eight. The Senate of each state has passed a PSL bill and sent it to the House, where it sits in committee.

Beyond these four states, any of the many other states with PSL bills in the legislative hopper could become State Number Eight. I cannot discern any other obvious or potential front-runner.

Waiting for State Number Eight is becoming much like waiting for Beckett’s Godot. When Godot continually fails to arrive, Estragon and Vladimir lament that he did not come today, he might come tomorrow.