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Eighth Circuit Faults Board's Test for Assessing Whether Employee Conduct Is Disloyal

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In MikLin Enterprises, Inc. v. NLRB, the Board and an 8th Circuit panel held that conduct by Jimmy John’s employees relating to sick leave was not egregiously disloyal, reckless, or maliciously untrue and was protected activity. The panel affirmed a Board order requiring the employer to reinstate the employees who had engaged in the conduct. Subsequently, the court voted to hear the case en banc and reversed, refusing to enforce the Board order.

Pete Lareau is the author of “NLRA: Law and Practice” and numerous other books and articles in the field of labor and employment law and is the Editor-in-Chief of Bender’s Labor & Employment Bulletin.

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