Disparagement Doesn’t Require Malice

By Patrick Scully

The NLRB recently has upheld some of the most outrageous employee conduct because it viewed the conduct to be part and parcel of “protected, concerted activity”. An egregious example of this trend was the NLRB’s finding that a number of Jimmy John’s employees were improperly discharged for publicly disparaging the company’s product. Specifically, employees, at the direction of a union, distributed posters and otherwise publicly claimed that Jimmy John’s sandwiches were made by sick employees. Although the Supreme Court long ago held that such public disparagement of a company or brand was “unprotected,” the NLRB had more recently required employers to show that such disparagement was “malicious”. The 8th Circuit rejected the NLRB’s revised standard and refused to enforce the order – calling the sick employee posters what they are – unprotected public disparagement. Miklin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. July 3, 2017).