Employers need to be able to protect their brand and their customer base—so when Jimmy John’s sandwich shop wokers posted signs in some stores insinuating that the company’s sandwiches were germ-ridden, Jimmy John’s swiftly fired fired six of the masterminds behind the flyers. If you denigrate the company, you have no right to remain on the payroll, right?

Wrong, according to the National Labor Relations Board (NLRB). Employees have Section 7 rights under the National Labor Relations Act (NLRA), which give them the ability to engage in collective action to improve the terms and conditions of their employment.

In this case, the NLRB determined that the Jimmy John’s employees were working together to try to get the chain to give them paid sick leave. The employees claimed that forcing workers to come to work while sick was unsanitary and thought that appealing to customers’ sensitivities with respect to food preparation might force the company’s hand. Employees prepared sick leave flyers that showed side-by-side photos of Jimmy John’s sandwiches with one labeled as having been prepared by a “healthy” worker and the other as having been made by a “sick” worker. The flyer said: “Can’t tell the difference? 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… Help Jimmy John’s workers win sick days.”

While the employer saw this as the ultimate sign of disloyalty, the NLRB took it as a creative way to attempt to improve working conditions, and thus determined that the activity was protected. As a result, the employer’s terminations were unlawful.

Many employee terminations present risks that employers do not recognize.  If you need help identifying potential liability in advance of an employee termination, contact counsel for advice before you take action.