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Posts Tagged ‘Jimmy John’s’

Jimmy John’s Fired Workers for Making a ‘Disloyal’ Meme. A Court Just Ruled That’s Okay.

Friday, July 14th, 2017

In a decision emblematic of the new climate of Trumpian governance, a federal appeals court in St. Louis ruled on July 3 that it is acceptable for the boss of a fast-food chain to fire workers for the sin of being “disloyal.”

The U.S. Court of Appeals for the Eighth Circuit reversed a ruling issued by the Obama-era National Labor Relations Board (NLRB) in a case spawned by a labor organizing drive at the Jimmy John’s fast-food chain. The court held that Miklin Enterprises, the owner of Jimmy John’s franchises in Minneapolis, had the right to fire six pro-union advocates because they demonstrated “disloyalty” by distributing flyers in 2011 that implied the company was selling unsafe food contaminated by employees obliged to work while sick with the flu.

The organizers designed and distributed memes that showed images of identical Jimmy John’s sandwiches. One was “made by a healthy Jimmy John’s worker,” the other by a “sick” worker. “Can’t tell the different?” the poster continued. “That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you’re about to take the sandwich test.”

The Minneapolis union campaign, launched by the Industrial Workers of the World (IWW or ‘Wobblies’), has been high-profile from the start. First erupting in 2010, the effort quickly developed into an intense legal fight at the NLRB before advancing to the federal courts. It even spilled over into the U.S. Congress in 2014 with the revelation that Jimmy John’s routinely required its low-paid sandwich makers to sign questionable “non-compete agreements.”

Threatened with punitive action by the attorneys general in several states, Jimmy John’s rescinded its non-compete policies in 2016, but not before the company’s reputation had been tarnished.

Like the non-compete agreements, the July 3 court decision is an unwarranted attack on labor rights, says William B. Gould IV, a labor law professor at Stanford University and former chairman of the federal labor board.

“The first thing that strikes you is how archaic this feels,” Gould tells In These Times. “The legal basis is from a case in the 1950s when people had a whole different concept of loyalty owed to their employer.

“In those days,” Gould continues, “the assumption was that loyalty was a two-way street: You were loyal to the company and the company was loyal to you. Now, with Uber and Lyft and the others, companies are even refusing to admit that you are one of their employees, so there isn’t much talk about loyalty owed to the employer anymore.”

The July 3 decision turns on the interpretation of ‘loyalty’ articulated in the 1953 Supreme Court case National Labor Relations Board v. Local Union 1229 International Brotherhood of Electrical Workers, known as “Jefferson Standard” for short. Earlier in the process of the more recent NLRB case, the labor agency’s Obama appointees had ruled that the firing of the workers was an illegal violation of their rights to form a union. But the appeals court decision reversed that decision, asserting that the disloyalty displayed by the pamphlets gave the employer the right to fire the workers, Gould explains.

The court stated, “(W)hile an employee’s subjective intent is of course relevant to the disloyalty inquiry—”sharp, public, disparaging attack” suggests an intent to harm the Jefferson Standard principle includes an objective component that focuses, not on the employee’s purpose, but on the means used—whether the disparaging attack was ‘reasonably calculated to harm the company’s reputation and reduce its income,’ to such an extent that it was harmful, indefensible disparagement of the employer or its product.”

Erik Forman was fired six years ago for organizing a union at a Jimmy John’s in Minneapolis. He told In These Times, “The big takeaway for me is that this ruling means workers do not have the right to tell the truth about their employer,” he said, adding: “The ruling is incredibly slanted towards the employer. They frame our campaign for sick days as an attack on the employer and turn logic on its head. We told the truth about the risk to the public.”

“Employers’ motivation wasn’t just to stop the sick-day campaign,” Forman continued. “It was to stop our unionization effort.”

According to Gould, “This case comes from the 8th Circuit which is the most conservative in the country. It’s the worst circuit in the country for a labor union, or for labor rights.”

The ultra-conservative nature of the ruling may have the unintended benefit of limiting its applicability to workers other than the Minneapolis Jimmy John’s employees, the former NLRB chairman adds. Other judicial districts may not be eager to follow its lead because many traditionally defer to the NLRB in matters of this kind, he says, and few employers will want to take the legal risk of relying on a circuit court ruling that has not been confirmed by the Supreme Court.

The reversal of the Obama-era NLRB decision mirrors action in Congress, where several measures are under consideration to roll back pro-worker measures adopted by the labor board during Obama’s tenure. This week, the U.S. Senate is considering thenomination of two Trump NLRB appointees, both of whom have been criticized as anti-worker by the AFL-CIO.

Carmen Spell, an NLRB representative at the agency’s Washington, D.C. headquarters, would only comment that “(w)e are considering options at this time” on how the agency will respond to the court ruling.

Jane Hardey, a spokeswoman for Jimmy John’s, declined any comment, asserting that the legal case involved only the Minneapolis franchise owner, and did not involve the sandwich chain company itself. Hardey did not respond to a request from In These Times for a telephone interview with Jimmy John Liautard, the controversial founder of the franchise.

According to the Jimmy John’s web site, the rapidly growing chain currently has 2,701 locations in 48 states. The number of employees is estimated at over 100,000.

“The fact that we were fired over six years ago in retaliation for union organizing should tell everyone that you cannot rely on labor law in this country,” says Forman. “Every single decision can now be appealed up to a Trump Supreme Court. We need to find new ways of building and exercising power on our own.”

This article was originally published at In These Times on July 13, 2017. Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Did Jimmy John’s Fire Yet Another Worker for Supporting a Union?

Wednesday, February 11th, 2015

Bruce VailFranchise operators at Jimmy John’s Gourmet Sandwiches in Baltimore are proving true to the national chain’s anti-union reputation with an aggressive counter-attack against local labor organizing, including a decision in late January to fire an outspoken union supporter, say advocates for the Jimmy John’s Workers Union, an affiliate of the radical union Industrial Workers of the World.

Delivery driver Brennan Leister says he was fired Jan. 23 at the Jimmy John’s location in downtown Baltimore’s tourist district. The reason cited by the manager was an infraction of the rules governing clocking out for breaks. But the “real reason,” Leister charges, is that he is an active and vocal union supporter. He says he is likely to file an unfair labor practice complaint with the National Labor Relations Board (NLRB) over the firing, but that he intends to continue to agitate for the union whether he is re-hired or not.

Leister’s dismissal is of a piece with the franchisee’s larger effort to push back against the union campaign, sometimes using tactics that appear to violate labor law, says Issac Dalto, also a Jimmy John’s delivery driver and union supporter. Since going public with their organizing effort last year, Dalto says, the local franchise owners fired another prominent union supporter, distributed anti-union materials in worker paychecks and hired a local anti-union law firm to contest separate unfair labor practice charges filed at the NLRB by the union last August.

Those charges are now tied up in NLRB delays as the franchisees challenge the Board’s subpoena of company employment records, Dalto reports. Appearing on NLRB documents as the representative of Jimmy John’s franchisees Daniel Dorch and Michael Gilette is Kevin McCormick, a lawyer with the firm Whiteford Taylor Preston. The firm’s own website states it handles “union organizational avoidance” for businesses of all kinds.

Three telephone calls to McCormick seeking comment were not returned. Similar e-mail requests were ignored.

The dismissal of Leister prompted a street demonstration on his behalf by union supporters January 31. Held in front of the Jimmy John’s downtown Baltimore location (near to the entrance of the Camden Yards baseball stadium), the demonstration saw about 25 union backers march on an informational picket line as thousands of sports fans streamed by on their way to a “FanFest” celebration for the Baltimore Orioles baseball team. Fans also packed the Jimmy John’s restaurant, as members of the local police department kept a close eye on the demonstrators.

Demanding that Leister be re-hired, the demonstrators also protested the low wages at the sandwich shop. Leister emphasized the point by telling In These Times that he had been hired at a wage $7.25 an hour in June 2013 and had not received an increase until this year, when state minimum wage law mandated an increase. He estimates that income from tips upped his hourly income to about $10 an hour, but that the cost of maintenance and repair of his personal bicycle cancelled most of the additional tip income. Drivers were provided with company-owned bikes when he started at Jimmy John’s in 2013, he says, but the vehicles were taken away and drivers required to supply their own bikes thereafter.

These kinds of wages are typical at the more than 2,000 Jimmy John’s restaurants around the country, Dalto adds, and spurred a highly publicized effort establish a union at for the company’s workers in the Minneapolis-St. Paul area in 2010. The effort was defeated, Dalto says, using the same tactics now being employed by the Baltimore franchisees.

The IWW campaign in Baltimore emerged into public view last year just as the fast food strikes began grabbing national headlines. Although there is no formal connection between the Baltimore organizers and the IWW’s national campaign to organize low-wage service sector workers—which also include a long-running Starbucks organizing campaign—and the Service Employees International Union (SEIU)-led Fight for 15 campaign, both groups have stressed the need to boost the chronic low pay of fast-food workers and to introduce other workplace improvements.

Leister says that his dismissal was an attempt to intimidate other workers who may consider supporting the union: “They want to create a climate of fear. The fast-food industry depends on working mothers and other income workers who can’t afford to lose a paycheck. They want you to fear the management, to fear the boss.”

This article originally appeared in Inthesetimes.com on February 11, 2015. Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Jimmy John's and Non-Competes: An Unclear Path

Wednesday, November 26th, 2014

olivia_headFor many companies, non-compete agreements are used to protect trade secrets, business plans and intellectual property. But why is Jimmy John’s, a sandwich chain, requiring its low wage workers to sign non-compete agreements?

These agreements do not allow employees to work for a competing sandwich shop for a period of two years following their employment at Jimmy John’s.

This prompted lawmakers to investigate the company’s policy that bars their workers from working for its competition. House members Rep. Joseph Crowley and Rep. Linda Sánchez call the practice “a form of intimidation.” Jimmy Johns under Fire for Worker Contracts. Together they have drafted a letter asking the Labor Department and the Federal Trade Commission to investigate the reports. But questions still linger. What does this do to the low wage worker? How are their rights impacted? And what are Non-Compete Agreements anyways?

To begin, a non-compete agreement is a contract between an employee and an employer, where the employee agrees not to enter into competition with the employer after they terminate employment. Non-Compete Agreements: Overview. These were once reserved and considered to be commonplace among certain professions. For instance, think of the workers at Coca-Cola who work closely with the secret recipe. It is understandable that their employees sign non-compete agreements not to work for Pepsi immediately after terminating their employment, due to the possibility they may reveal information that gives the new employer a competitive advantage.

Courts usually disapprove of non-compete agreements as they limit the employees ability to earn a living. This can greatly impact the low wage worker with specific set of skill. The court must balance the need to protect the employer’s legitimate interest with any burden that enforcement of the agreement would place on the employee. Additionally, the Court must determine if the duration and scope of the agreement is reasonable. Remember that Jimmy John’s is asking their employees who terminate their employment to wait two years before seeking new employment.

As this issue progresses it will be important for all those investigating to consider how some states have chosen to approach the topic. California, for example, has forbidden the use of non-compete clauses, providing for a few exceptions (California Non-Compete Site) while other states require that the use of non-competes be reasonable in scope.

It is unclear where this will lead. But it is clear that Jimmy John’s use of the non-compete clause intimidates its low-wage workers and places a restraint on them to find better work.

For more information on non-compete agreements and their impact in the workplace visit: http://www.workplacefairness.org/noncompete

About the Author Olivia Nedd is a legal intern for Workplace Fairness and a student at Howard University School of Law.

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