Five employees of Pop-Up Chicken Shop lost their jobs on the Fourth of July after telling owner Aaron Francis they wouldn't work without the time-and-a-half listed in the company's employee handbook.
Francis says he was within his rights. Illinois doesn't require holiday pay, and it's an at-will state, where workers can generally be fired for almost any reason.
"We made an amendment to company policy," Francis said Monday at the restaurant's Bloomington location. "We let everyone know well in advance — well over seven days in advance — that due to Illinois labor laws, we do not have to pay time-and-a-half."
He also said the handbook's first page states it is not a legal contract.
Francis added, "I 100% stand behind the wages that I was paying every single employee that I fired, and I thought it was very greedy for them to expect me to pay time-and-a-half."
But a University of Illinois professor who studies how employment relationships end said the fired workers may have as many as four possible avenues of legal recourse.
"There is no specific statute or regulation for holiday pay in Illinois," said Michael LeRoy, a labor and employment law professor at the University of Illinois Urbana-Champaign. "But I don't think the story ends there."
LeRoy stressed he could not offer a definitive conclusion about this dispute. Speaking generally, he laid out where the law gets complicated.
It doesn't matter that they called it a 'boycott'
On the morning of July 4, Francis said, about five scheduled employees sent a group text saying they would not come to the Bloomington eatery unless they were paid the handbook rate. He fired them.
"For me, that was a crazy ultimatum," Francis said Monday. "I felt like I was ganged up on."
In a Facebook post published July 4, Maddie Bean — one of the fired employees Francis later named in his own post — described herself as "a part of a 'boycott.'"
Neither she nor her coworkers belonged to a union. According to LeRoy, none of that matters.
The National Labor Relations Act protects what's called concerted activity, he said, even when no union exists and none is being formed. He pointed to the #MeToo era, when non-union employees — particularly in the technology sector — walked off the job together and were threatened with termination or fired.
"It's immaterial whether a union is directly involved. It's immaterial whether the employees use the term strike or boycott," LeRoy said.
"They acted in concert. What matters is: Did they act together with the same intention, the same thought, over the same employer policy or activity? If those criteria are met, then it does look like an NLRB kind of situation."
The NLRB, or National Labor Relations Board, is the independent federal agency that enforces the National Labor Relations Act, the 1935 law governing the relationship between private-sector employers and workers.
But protection has limits, said Danielle M. Kays, an employment law partner at the firm Fisher Phillips.
"Workplace retaliation can occur if an employer takes an action, such as a termination or an adverse action against an employee, but it has to be for engaging in that protected activity," Kays said. "If the termination occurs for another reason, then that may not constitute retaliation."
"Failing to appear for a work shift — that could be a reason where a termination may occur," she said.
Union guidance to striking workers reflects that distinction. Strike FAQs from the United Steelworkers and AFSCME tell members to report or clock in as scheduled, then walk out together and join a picket line at the workplace, making the protest visible rather than an absence.
The handbook problem
No law requires an employer to have a handbook at all, and LeRoy said most small employers don't. But writing one carries a cost.
"The employer is not under any legal compulsion to have it," LeRoy said. "But once they have it, they expose themselves to being held accountable to live up to the terms of the handbook. So that makes it a more questionable kind of termination."
Handbooks are ordinarily unenforceable, LeRoy said, but Illinois courts recognize what's known as the handbook exception to at-will employment: Under certain circumstances, a handbook becomes an enforceable contract.
"Key to that is whether the employees have to acknowledge receipt of the handbook — that they've read it, that they understand its terms," LeRoy said.
Bean wrote on Facebook: "The employee handbook stated we would be getting paid time and a half for today [7/4], and when asked about the time-and-a-half pay Aaron [Francis] said we would not be receiving it with no explanation."
She added that "we all read this handbook when any changes are made and we re-sign it as well."
A photo widely distributed on social media shows what appears to be a page of Pop-Up Chicken's employee handbook stating employees would be paid 1.5 times their regular hourly rate on July 4. WGLT could not independently verify it is, in fact, the real handbook.
Bean, who lives in Bloomington, was reached by WGLT for comment but explained that she and her fellow fired employees do not wish to make any further comments officially.
Patricia Smith, an eight-year employee, said on Monday at the Bloomington location that Francis had said from the beginning the restaurant didn't pay holiday premiums.
Francis pointed to the handbook's disclaimer:
“Since the information, policies, and benefits described here are necessarily subject to change, I acknowledge that revisions to the handbook may occur. All such changes will be communicated through official notices, and I understand that revised information may supersede, modify, or eliminate existing policies.
Furthermore, I acknowledge that this handbook is neither a contract of employment nor a legal document. I have received the handbook and understand that it is my responsibility to read and comply with the policies contained in this handbook and any revisions made to it.”
LeRoy said courts scrutinize handbook disclaimers closely, typically looking for boldface, enlarged type stating the handbook can be changed at any time, effective immediately.
"If that's in the handbook, that's a point for the employer," he said.
The timing of the handbook change, LeRoy said, cuts the other way.
"Given how quickly it changed in advance of people relying on that information, a court could find that even with the disclaimer, the disclaimer was exercised in a fashion that was too late."
Much depends, he added, on "how specific the wording is, and does it create a reasonable expectation in the employee's mind of a bargain that has been made."
In an email, Illinois Department of Labor spokesperson Paul Cicchini said “Illinois law does not require employers to provide paid holidays or holiday pay. However, if an employer has a written policy, employment agreement or other promise to provide holiday pay, the employer must pay the benefit in accordance with the terms of that policy. The employee should file a claim with IDOL if they’re not being paid.”
Cicchini added that “employees who believe they were wronged in the workplace” should visit the IDOL complaint page.
Two more wrinkles
LeRoy identified two additional questions a lawyer would ask. July 4 fell on a Saturday this year, so if any of the fired workers had already crossed 40 hours that week, refusing to work could be tangled up with federally protected overtime rights.
And an Illinois law known as ODRISA — the One Day Rest In Seven Act — could come into play if any employee was scheduled for a seventh consecutive day.
Both are hypotheticals; LeRoy had no knowledge of the workers' schedules.
'Never a good idea to air your dirty laundry'
The airing of grievances online is perhaps another issue.
"An attorney would advise an employer in this situation not to publicize the nature of the dispute," LeRoy said, "for exactly this reason — that you could be making legal admissions against interest."
Both sides theoretically run a defamation risk, he said, though the bar is high: It requires malice and falsity, and "if the employer is just ignorant about his handbook, that's not falsity," he said, nor is ignorance about Illinois labor and employment law.
Francis naming the fired workers in a Facebook post adds a distinct exposure, LeRoy said. For example, if they can show the publicity is hurting their search for new work in the local labor market.
"I can't say that it helps a former employee to show up at the next fast food restaurant when they're preceded by information that they were fired for asking for holiday pay, and now it blew up on a social media post," LeRoy said. "That's not a great fact for the former employer to deal with."
Francis acknowledged that his initial response inflamed things.
"I could have portrayed a better message on Facebook, 100%," he said. "But it was a very emotional, passionate response."
It's not the first time Francis has aired a dispute on Facebook. Last November, frustrated by repeated liquor license denials at his Warehouse District location in Peoria, in a since deleted post he took to the platform to call out the City of Peoria and Mayor Rita Ali, threatening to pull his business — and more than 30 jobs — from the 800 block of Southwest Adams Street.
In her July 4 post, Bean drew a different lesson: "There is very little we can stand up for, but if you take anything at all away from this post, stand up for the respect you feel you deserve. A job doesn't have to just be a job, and your voice does matter."
"It's never a good idea," LeRoy said, "to air your dirty laundry on Facebook."