Burger King Franchisee Faulted for Not Hiring Wage Hike Advocate

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By Jon Steingart

A Burger King franchisee in Missouri violated a worker’s rights under federal labor law when it refused to rehire him after he advocated for an increase in the minimum wage, an appeals court ruled ( NLRB v. EYM King of Mo., LLC , 8th Cir., No. 16-3415, unpublished 6/21/17 ).

EYM King of Missouri LLC acquired several Burger King restaurants and hired employees who had worked under the previous owner. A National Labor Relations Board administrative law judge sided with former employee Terrance Wise, who contended that he wasn’t rehired because of his involvement with the Workers’ Organizing Committee—Kansas City. That organization is an affiliate of a nationwide movement known as Fight for $15, which advocates for a higher minimum wage, particularly in fast-food businesses.

EYM King’s refusal to rehire Wise violated the National Labor Relations Act, the U.S. Court of Appeals for the Eighth Circuit found in an unpublished decision June 21, upholding the ALJ’s determination.

The ruling is a reminder that the NLRA may apply even in a nonunion workplace. The act prohibits employers from interfering with workers’ right to engage in “concerted activities” designed to improve working conditions.

Earlier this month, for example, the U.S. Court of Appeals for the Second Circuit concluded Whole Foods Market Group Inc.'s policy against employees electronically recording communications violated the NLRA because such recordings could be used in campaigns to form a union or advocate for better conditions. Whole Foods isn’t a unionized workplace.

The general manager for the Burger King restaurant where Wise worked, who was rehired when EYM King acquired it, said Wise wasn’t rehired because he had a history of insubordination and tardiness and that a change in his availability was incompatible with the restaurant’s scheduling needs. But the ALJ found her testimony not credible and concluded it was a pretext to cover up that Wise wasn’t rehired because of his role with Fight for $15.

The Eighth Circuit panel included Judges Raymond W. Gruender, Diana E. Murphy, and Jane Kelly. The opinion is unpublished, which means it isn’t binding on lower courts.

John Ross of Thompson, Coe, Cousins & Irons LLP in Dallas, Texas, represented EYM King. He declined to comment June 21, and the company didn’t respond to Bloomberg BNA’s request for comment.

Jill Griffin and Rebecca Johnston with the NLRB general counsel’s office in Washington, D.C., represented the agency. A representative in the NLRB press office declined to comment June 21.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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