Over the past several years, we have reported on a seemingly never-ending series of National Labor Relations Board (NLRB) decisions proclaiming a variety of abusive employee practices as protected behavior under federal labor laws. On July 3, the Eighth Circuit Court of Appeals reached the limit of its tolerance for these decisions, reversing a NLRB decision that protected employees’ rights to make unsupported claims that their employers’ food was unsafe.

MikLin Enterprises, Inc. v. NLRB involved a Jimmy John’s sandwich franchisee that successfully repelled a union attempt to organize its stores. After this defeat, union supporters seeking institution of a paid leave policy began posting flyers inside and in proximity to the restaurants questioning the safety of the franchisee’s food, because sick workers might feel obligated to work rather than go unpaid. The employer terminated six employees involved in these postings, and they filed a complaint with the NLRB alleging violation of their right to participate in concerted activity. The NLRB agreed, characterizing the behavior as protected advocacy for paid leave.

The Eighth Circuit disagreed, reversing the NLRB decision. The court rejected the NLRB’s view that employees could engage in any disparagement of the company unless the employer could prove that it was done with malicious intent. Federal labor law does not protect calculated attacks on companies’ goods and services regardless of an underlying desire to change terms and conditions of employment.

If President Trump’s nominees to the NLRB are approved by the Senate, it is unlikely that the Board will continue taking positions similar to those expressed in this case. In the meantime, federal courts appear willing to apply some limits to the NLRB’s expansive view of employee concerted activity rights.