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Labor and Employment Law

For Want of a Well-Placed Pickle: Will Your Termination Pass the Red-Face Test?

 Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes” to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are misaligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy [an enhanced version of this opinion is available to subscribers]. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.

 Visit the Ohio Employer's Law Blog for more practical employment law information.

Presented by Meyers, Roman, Friedberg & Lewis. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 831-0042 or

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