NLRB Finds Hospital’s Work Rules Illegal

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By:  Karen L. Piper

 

The NLRB, National Labor Relations Board, has issued a series of decisions in the past few years finding unlawful various employer work rules because the rules might deter employees from engaging in protected Section 7 rights.  The NLRB’s jurisdiction in this area is not limited to unionized workplaces.  Its latest decision involved William Beaumont Hospital, Case 07‑CA-093885 (4/13/2016).  The hospital’s employees were not unionized.

Section 7 of the Act guarantees employees the rights to form and join unions, to bargain collectively and to engage in other conduct for their mutual aid and protection.  Work rules violate employees’ Section 7 rights if:

  • they expressly restrict Section 7 activity;
  • they are promulgated in response to union activity;
  • they are applied to restrict employees’ exercise of Section 7 rights; or
  • employees would “reasonably construe” the language of the rule to prohibit Section 7 activity.

The Beaumont Hospital case involved the discharge of two labor and delivery nurses for bullying and intimidation in connection with a hospital investigation following the death of a baby.  All three members of the NLRB panel agreed that the nurses’ discharges were lawful.  However, in reviewing this matter, two members of the panel found several of the hospital’s work rules unlawful.  The rules applied to employees working in surgical services and perianethesia.  The stated purpose of the rules was “to foster effective working relationships among all hospital employees and physicians in order to provide and maintain high quality and safe patient care.”  The Introduction to the rules said, in part, that conduct “that impedes harmonious interactions and relationships will not be tolerated.”  The NLRB found that this language was “sufficiently imprecise” and could deter any disagreement or conflict among employees, including those relating to employees’ Section 7 rights.”

The NLRB also found illegal the following rules because they were too broad and/or might deter employees’ Section 7 activity:

  • Verbal comments or physical gestures that exceed the bounds of fair criticism;
  • Negative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians or visitors; and
  • Behavior that is counter to promoting teamwork.

In light of the NLRB’s ongoing scrutiny of employer work rules, even in non-unionized workplaces, employers should review their work rules with employment counsel familiar with employees’ Section 7 rights, such as the author, an update their rules, as needed.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2016.

Walsh College Students Receive Prestigious Local Finance Organization Award

WalshCollege286_reg04Walsh College business students Heidi Devroy of Columbus, Mich., and Aaron Dubin of Farmington Hills, Mich., have received the 2016 Financial Executive International (FEI) Detroit Chapter Academic Award for demonstrated excellence and aspirations for a finance-related career following graduation.

Both Devroy, an undergraduate pursuing a Bachelor of Business Administration degree with a major in Finance (BBA-FIN) , and Dubin, a graduate student working toward a Master of Business Administration/Master of Science in Finance (MBA/MSF) dual-degree, received their honors at a recent dinner and presentation at the Detroit Athletic Club.

“Heidi and Aaron have both nurtured their passion for finance to new levels through their academic programs. They employ critical concepts of finance daily in their respective full-time careers – Heidi as an entrepreneur and Aaron as an information technology professional,” said Gregory Todd, associate professor and chair, Finance and Economics, at Walsh College. “They show that the hard work and determination typical of Walsh Students can lead to business success in a global environment.”

The FEI Detroit Chapter has more than 210 members. FEI connects senior-level financial executives while serving the needs and interests of its members. It is a unique forum for financial executives to network and share best practices, engage in knowledge-building conferences and seminars, be represented in critical national and global policy debates, and be aligned with a culture that fosters ethical leadership.

Devroy is co-founder, co-owner, and office manager of Prosper-Tech Machine & Tool LLC, in Richmond, Mich. She previously attended Macomb Community College and St. Clair County Community College.

Dubin is a systems engineer at Edward Rose and Sons, Bloomfield Hills, Mich. He holds a Bachelor of Science in Computer Science, with a minor in Japanese, from Rose-Hulman Institute of Technology. He has earned multiple listings to the Bloomberg Aptitude Test Hall of Fame list, highlighted as a “Worldwide Top 3” selection in July and November 2015.

Besides its BBA-FIN and MBA/MSF, Walsh College also offers a Master of Science in Finance.

More than 5,600 students have graduated from the Walsh Finance program since its inception. More than 4,900 finance alumni live in Michigan.

For more information on Walsh College and all degree programs, visit www.walshcollege.edu.

WALSH COLLEGE

Founded in 1922, Walsh College is an all-business, private, independent, not-for-profit, fully accredited college. It offers 19 undergraduate and graduate business and technology degrees, as well as certificate programs. One of the region’s largest business schools and one of Michigan’s top three graduate business schools, Walsh has locations in Troy, Novi, Clinton Township, and Port Huron, as well as online.

Walsh degree programs include accounting, finance, information technology, management and leadership, marketing, taxation, and other fields. The faculty integrates theory and application to prepare our graduates for successful careers. It includes four Fulbright Scholars, the most of any business school in the state of Michigan. There are about 27,000 alumni, most of whom live or work in Michigan.

Walsh is accredited by the Higher Learning Commission (www.hlcommission.org). The Accreditation Council for Business Schools and Programs (www.acbsp.org) accredits specific degree programs.

CONTACTS

Brenda Meller/Assistant Vice President, Walsh College bmeller@walshcollege.edu or

248-823-1205.

Elaine Green/Account Supervisor, Airfoil Public Relations green@airfoilgroup.com or
248-304-1456.

Another Hospital Facing Discrimination Claim For Allegedly Honoring Patient’s Unlawful Request For White Only Healthcare Workers

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By:  Claudia D. Orr

 

It wasn’t that long ago that I wrote about a hospital that beat a discrimination claim after allegedly honoring an unlawful request for white only attendees because the employee had not suffered an adverse employment action. Crane v Mary Free Bed Rehabilitation Hospital.  http://www.mishrmblog.org/2016/01/what-to-do-when-a-client-asks-you-to-discriminate/  Now, there is a case demonstrating one way a plaintiff may get around this dilemma.

The lawsuit involves a local hospital that allegedly prohibited an African American respiratory therapist from working with a white patient because he only wanted white caregivers.  Specifically, a white patient came in through the Emergency Department with shortness of breath and a collapsed lung. The patient told his nurse (who was still in training) that he did not “want any black people taking care of him during his stay.”  The nurse’s trainer told her to inform the charge nurse and put the statement in the patient’s medical records. The notation was made, but it was not noted whether the request would be honored. There is no written policy permitting or prohibiting the staff from honoring such requests.

The patient was transferred from the Emergency Department to one of the medical floors where the African American plaintiff was assigned to do a breathing treatment.  The patient instructed her to leave his room and not to read his chart.  The plaintiff summoned a nurse who went into the patient’s room and, when she came out, told the plaintiff it was because she was black.  Plaintiff, being the only respiratory therapist on staff, made a note that she was not allowed to conduct the breathing treatment because she was black. The plaintiff was summoned again later that shift, and was again refused by the patient.

When management became involved, the patient was told his requests could not be honored.  Plaintiff was then told the request should not have been honored and the notation should not have been in the chart. Management apologized to plaintiff and asked if she was afraid of the patient and, if so, they could assign someone else or have someone go in the room with her.  She said she was not.  However, when plaintiff went to treat the patient, she discovered he had been moved to another floor, presumably because he was to undergo surgery.  The hospital has alleged that other African American employees worked with the patient before his discharge.

Under Title VII and the Elliott-Larsen Civil Rights Act (the state and federal civil rights laws), the facts above would not state a claim because one of the elements that a plaintiff has to prove is that she suffered an adverse employment action.  An adverse employment action requires more than an inconvenience.  It has to be a significant change in the terms of employment and, generally, something that affects the plaintiff economically such as a demotion or discharge.

Here, however, the plaintiff filed a claim not only under Elliott-Larson, but also under 42 USC § 1981.  Section 1981 “prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private actors. … The statute’s protection extends to ‘the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.’” Thus, even a temporary abridgement of plaintiff’s rights states a claim even without an adverse employment action.

The defendant hospital filed a motion for summary judgment which was heard by Judge Parker of the federal district court for the Eastern District of Michigan. The court found it significant that “[t]here is no written policy instructing [the hospital’s] employees to reject the racial preferences of its patients.  [The hospital] also does not conduct any training or otherwise advise its employees on how to handle such race-based requests.” Moreover, while the patient’s request was written in the records, there was nothing to indicate the request would not be honored.  Also, while the patient was presumably moved because he was to have surgery, he never did. Thus, there remained the question of whether that was the real reason for the move, or whether he was moved so that a different [white] therapist could attend his needs. The court denied the hospital’s motion, finding issues that the jury needed to resolve.

It is not clear how the Elliott-Larsen claim survived the motion.  But what is clear is that employers providing services to the public (or temporary staffing agencies, which often receive such illegal requests) should have a policy that prohibits employees from honoring discriminatory requests and train their employees on how to correctly respond when faced with an unlawful request.

If your company needs assistance with drafting policies or training employees, you should consult with an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April 2016.

Walsh College Presents Annual Wine Gala for Student Scholarships at the General Motors Heritage Center in Sterling Heights, Mich.

WalshCollege286_reg04Walsh College presents the Wine Gala, one of its largest annual fundraising events for student scholarships, at 7 p.m., Friday, May 6, 2016, at the General Motors Heritage Center, 6400 Center Drive, Sterling Heights, Mich.

This year’s Wine Gala will once again celebrate the Kentucky Derby and Derby attire is encouraged. Guests will enjoy wine tastings, delectable cuisine catered by Forte Belanger, a hosted bar, mint juleps, bourbon pie, and full access to the GM facility.

The General Motors Heritage Center exhibits more than 165 vehicles, each representing a milestone in GM automotive history. The vehicles showcase different designs or technological advances in key time periods.

The annual Wine Gala raises funds for the Walsh College Scholarship Fund, which has supported many Walsh students since its inception in 2003. In the subsequent years, the Wine Gala has raised more than $800,000 for the Scholarship Fund.

All tickets are $175. An invitation-only, VIP Sponsors Reception offering advanced access to rare-wine tables begins at 6:30 p.m. General admission starts at 7 p.m.

Co-chairs for the 2016 Walsh College Wine Gala, all residents of Grosse Pointe, Mich., are Mindy Barry, attorney; Jennifer Rice; and Scott Rice, chief operating officer, Powerlink Facilities. Scott Rice is a Walsh alumnus.

Among the corporate sponsors for the 2016 Wine Gala are Auburn Pharmaceutical, CareTech Solutions, Clayton & McKervey, Comerica Bank, Conway MacKenzie, Deloitte, Doner, Doeren Mayhew, Ernst & Young, Federal Mogul, Lear Corporation, Plastipak Packaging, and Wealth Management Services.

For additional information and to purchase tickets, visit www.walshcollege.edu/WineGala or contact Andrea Richards, assistant director, Special Events and Stewardship, at 248-823-1204.

WALSH COLLEGE
Founded in 1922, Walsh College is an all-business, private, independent, not-for-profit, fully accredited college.  It offers 19 undergraduate and graduate business and technology degrees, as well as certificate programs.  One of the region’s largest business schools and one of Michigan’s top three graduate business schools, Walsh has locations in Troy, Novi, Clinton Township, and Port Huron, as well as online.

Walsh degree programs include accounting, finance, information technology, management and leadership, marketing, taxation, and other fields.  The faculty integrates theory and application to prepare graduates for successful careers.  It includes four Fulbright Scholars, the most of any business school in the state of Michigan.  There are about 27,000 alumni, most of whom live or work in Michigan.

Walsh is accredited by the Higher Learning Commission (www.hlcommission.org).  The Accreditation Council for Business Schools and Programs (www.acbsp.org) accredits specific degree programs.

CONTACTS
Andrea Richards/Walsh College, Assistant Director, Special Events & Stewardship arichard@walshcollege.edu or 248.823.1204

Elaine Green/Account Supervisor at Airfoil Public Relations green@airfoilgroup.com or 248.304.1456.

Walsh College Trustees Name Tom Walsh to The Board And Daniel Cornwell and Laura Soave to Foundation Posts

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The Walsh College Board of Trustees, the governing body of one of Michigan’s leading business colleges, has approved the appointment of Tom Walsh, former business columnist, editor, and writer at the Detroit Free Press, to a three-year term on the Board of Trustees.

In addition, the board also confirmed the appointment of Daniel A. Cornwell, chief executive officer, Cambridge Consulting Group, and Laura Soave, senior vice president, chief marketing and communications officer, Federal-Mogul Holdings Corp., as members of the College’s Foundation Board of Directors.

All three new board members are Walsh College alumni.

“Tom Walsh brings tremendous enthusiasm and experience to the College from a career of covering and analyzing important business issues and people in our community. His insights into contemporary global business are highly valued,” said Ed Gwilt, chair, Walsh College Board of Trustees.

“Daniel and Laura are both highly respected in the business community,” Gwilt added. “We are honored by their willingness to support their alma mater through active participation on the Foundation Board.  They will provide vision and critical thinking necessary for building and growing the Foundation’s service to the College.”

Established in 2004, the Walsh College Foundation serves as the official fundraising arm of the College and encourages private giving and ensures the integrity of the College’s philanthropy program. It is staffed by employees of the College and led by volunteers who are business, industry, and community leaders. Walsh alumni comprise 72 percent of the 25-member Foundation Board of Directors.

Tom Walsh worked at the Detroit Free Press from 1982 to 2015 as a reporter, bureau chief, suburban editor, business editor, projects editor, and columnist. Previously he was city editor at the Oakland Press and a reporter and editor at Fairchild Publications in Chicago, New York, and London, England.

A native of Chicago, Tom Walsh received a bachelor’s degree in Industrial Management from Purdue University in 1972. He earned a master’s degree in Information Management and Communications from Walsh College in 1997. In 1990, he was a Jefferson Fellow in Pacific Rim Studies at the East-West Center in Hawaii. Walsh also served as master of ceremonies for the College’s recent “State of the College” report.

Cornwell leads one of the largest privately-held insurance and financial service consulting firms in Michigan, identifying and executing growth strategies, business development, and corporate governance. He also oversees the Wealth Strategies Practice Group, focusing on innovative strategies for estate planning, as well as creation of custom plans for wealth preservation and management, and executive benefits programs.

Cornwell earned his Bachelor of Science in Finance from Walsh in 1994 and has served on the Walsh College Alumni Association Planned Giving Board. He is a member of the board of directors, Barbara Ann Karmanos Cancer Institute and co-chairs Partners, a volunteer group that has raised $9 million to support research at Karmanos.

Soave has been with Federal-Mogul since 2014 with responsibilities for global brand management and marketing and communications. She previously served as vice president and CEO, FIAT Brand – North America, at Chrysler Group LLC; general manager, Marketing, Volkswagen of America; brand manager, Ford Motor Company, and Mercury marketing manager, Lincoln Mercury.

Soave earned her Bachelor of Business Administration degree from Walsh College in 1995. She later received a Master of Business Administration degree from the University of Detroit-Mercy.

Soave has served as a volunteer teacher with Junior Achievement of Southwest Michigan and as a mentor with the Detroit Creative Corridor Center.

WALSH COLLEGE
Founded in 1922, Walsh College is an all-business, private, independent, not-for-profit, fully accredited college. It offers 19 undergraduate and graduate business and technology degrees, as well as certificate programs. One of the region’s largest business schools and one of Michigan’s top three graduate business schools, Walsh has locations in Troy, Novi, Clinton Township, and Port Huron, as well as online.

Walsh degree programs include accounting, finance, information technology, management and leadership, marketing, taxation, and other fields. The faculty integrates theory and application to prepare graduates for successful careers. It includes four Fulbright Scholars, the most of any business school in the state of Michigan. There are about 27,000 alumni, most of whom live or work in Michigan.

Walsh is accredited by the Higher Learning Commission (www.hlcommission.org).The Accreditation Council for Business Schools and Programs (www.acbsp.org) accredits specific degree programs. 

CONTACTS:
Brenda Meller/Assistant Vice President, Walsh College bmeller@walshcollege.edu or
248-823-1205.

Elaine Green/Account Supervisor, Airfoil Public Relations green@airfoilgroup.com or
248-304-1456.

Walsh College President and CEO Stephanie Bergeron Announces Retirement

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Stephanie W. Bergeron, president and CEO of Walsh College since January 2007, the first woman to lead the College, and its sixth president since its inception in 1922, has announced her retirement from the region’s leading business school, effective in early 2017.

To ensure a smooth transition, Bergeron will remain as president and CEO until a national
search process for a new president concludes in early 2017.

Edward T. Gwilt, chair, Walsh College Board of Trustees, said, “Stephanie has provided
exceptional leadership in guiding the College though an important period of academic
advancement and facilities modernization.

“Her strategic vision and outlook have been critical in providing quality business and information technology programs valued by students and employers alike,” he added. “We are grateful for her energy, enthusiasm, and important contributions. Her legacy of student support and interaction, along with a relentless pursuit of academic and business excellence, will remain in the fabric of the College.”

Bergeron has presided over a host of major initiatives during her Walsh tenure, including the Driving Aspirations campaign that raised more than $5 million for scholarships; the 2009-10 Take Charge skills-training workshop program for displaced workers, offered during the recession; accreditation by the Accreditation Council for Business Schools and Programs
(2010); the Walsh College LaunchPad for aspiring student and alumni entrepreneurs (2010); Entrepreneur-YOU (2012), a program providing local women with tools and knowledge for entrepreneurship; the award-winning Finance Lab (2013); and the $15 million addition and renovation of the Troy campus (2016).

New degree programs developed during her leadership have included the Master of Business Administration/Master of Science of Finance dual-degree program (2009), the revised Master of Science in Accountancy program (2013); the enhanced MBA, Master of Science, dual-degree MBA/MS graduate programs (2014); and the cybersecurity concentration in the Master of Science in Information Technology degree program (2016).

“I am proud of my contributions to the educational legacy of Walsh College and to the
community,” Bergeron said. “We have made tremendous strides as a leading business college which have contributed to the educational advancement of our students and in the economic growth of southeast Michigan.”

She added, “I look forward to continuing my role at Walsh while a successor is selected and then creating new opportunities for personal growth and a little fun in the future.”

Bergeron began her career at Arthur Andersen in 1975. She later spent 26 years in automotive industry finance in increasingly responsible positions at General Motors, Chrysler, and Goodyear Tire and Rubber. At Goodyear, Bergeron advanced to senior vice president,  Corporate Financial Operations, responsible for Goodyear’s global corporate finance, accounting, tax, and treasury.

She later became founder, president, and chief executive officer of Bluepoint Partners, a
consulting company providing advice on financial and capital structure. Bergeron has been a member of the Walsh College Board of Trustees since 1996.

Bergeron is a Henry Ford Health System trustee and chairs its Finance and Planning
Committee. She is the chair, board of directors, of the Michigan Association of Certified Public Accountants (MICPA). Her board memberships include the Detroit Regional Chamber, the Detroit Economic Club, and Sun Communities, Inc. Bergeron is also a member of the Executive Committee, Michigan Independent Colleges and Universities.

In 2013, the Michigan Business and Professional Association honored Bergeron with a
“Distinguished Leadership Award” in the Education category while the MICPA honored her with its “Women to Watch Award,” Experienced Leader category. Bergeron also received DBusiness’ 2013 “Powered by Women” award. In 2011, she received an honorary Associate in Arts and Sciences degree from Schoolcraft College.

In 2007 and 1997, Crain’s Detroit Business named Bergeron one of its “Most Influential
Women.” She was awarded Pillar of Vibrancy in Education honors from The Community House, Birmingham, Mich., in 2014. Bergeron received the Oakland County “Quality People, Quality County” award for career achievement and community contributions in 2015.

Bergeron earned a Bachelor of Business Administration degree in accounting from the
University of Michigan in 1975 and a Master of Business Administration from the University of Detroit in 1981.

A Certified Public Accountant, Bergeron earned the Chartered Global Management Accountant (CGMA) designation from the American Institute of CPAs (AICPA), and is a member of the AICPA Council.

For more information on Walsh College, visit http://www.walshcollege.edu.

WALSH COLLEGE
Founded in 1922, Walsh College is an all-business, private, independent, not-for-profit, fully accredited college. It offers 19 undergraduate and graduate business and technology degrees, as well as certificate programs. One of the region’s largest business schools and one of Michigan’s top three graduate business schools, Walsh has locations in Troy, Novi, Clinton Township, and Port Huron, as well as online.

Walsh degree programs include accounting, finance, information technology, management and leadership, marketing, taxation, and other fields. The faculty integrates theory and application to prepare graduates for successful careers. It includes four Fulbright Scholars, the most of any business school in the state of Michigan. There are about 27,000 alumni, most of whom live or work in Michigan.

Walsh is accredited by the Higher Learning Commission (www.hlcommission.org). The
Accreditation Council for Business Schools and Programs (www.acbsp.org) accredits specific degree programs.

CONTACTS:
Brenda Meller/Assistant Vice President, Walsh College bmeller@walshcollege.edu or
248-823-1205.
Elaine Green/Account Supervisor, Airfoil Public Relations green@airfoilgroup.com or
248-304-1456.

EEOC Publishes Guidance for Employers

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By:  Claudia D. Orr

 

The Equal Employment Opportunity Commission (EEOC) just published a one page summary that small employers or new human resources professionals may find useful.  It can be found at:

http://www.eeoc.gov/eeoc/publications/upload/small_business_english.pdf

If the link does not work, cut and paste it in your browser.  Buried within the page are other useful links as well.  Just a quick note though … there are other protected statuses not identified in the publication.  For example, under Michigan law, weight, height, marital status, and misdemeanor arrest records cannot be used to make employment decisions. Also, sex includes pregnancy and conditions related to pregnancy and the EEOC takes the position that sexual orientation and transgendered status are also protected statuses.

If you haven’t visited the websites for the EEOC or the Michigan Department of Civil Rights lately, you might be surprised how rich in resources they are.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April  2016.

Disciplining Employees for Bathroom Conversation Violated Federal Labor Law

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By:  Claudia D. Orr

 

The National Labor Relations Board (NLRB) just ruled that Quicken Loans committed an unfair labor practice and violated the National Labor Relations Act (NLRA) when it disciplined two employees for engaging in concerted activity protected under Section 7 of the NLRA.  Wait until you read what happened!

In August 2014, Austin Laff was employed by Quicken Loans as a mortgage banker in Arizona. Six months later he was fired for having a conversation in a men’s room which was open to the public.  Specifically, it was alleged that Laff commented to Michael Woods, a coworker, about a client who had refinanced 4 years earlier and “that client should get in touch with a f—ing Client Care Specialist and quit wasting his f—ing time.” The other employee responded with his own negative comments.  Another coworker, who had been in a stall at the time, came out, recognized the two speakers and reported the conversation.  There was a significant discrepancy between the three employees’ versions concerning who said what to whom. However, an email went out to all employees in the office stating:

I know that this email has been sent out before and I will send it out again!!!!  Under no circumstances should we be discussing the pay we receive, in an area that a client or potential client could ever hear us.  This goes along with discussion [sic] specific clients, client profiles, credit costs and rates that we have given to clients.  Never, EVER should we be swearing in the bathroom especially about clients.  Also, please refrain from stating that clients that call in are wasting your (*swear word*) time.  This is NOT who we are and NOT what we stand for.  Check yourself at the door.

The font was so large that this six and half sentence email took up the entire email page.

Management met with Laff (who had been the recipient of prior discipline) and, when he denied the incident, they terminated his employment. Later that evening, Laff sent an email to management indicating that, initially, the allegations had confused him.  However, having had a chance to think about them, he realized that the conversation had occurred, but it was Woods, not him, who had made the comments.

Laff’s discharge stood, but Woods (who had no prior discipline) was disciplined for taking part in the conversation and warned that further unprofessionalism would result in discharge.

Under Section 7 of the NLRA, employees have the right to engage in “concerted activity.”  Section 7 states that “Employees shall have the right to self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.”  To be protected the actions must be both “concerted” and for the purpose of “mutual aid or protection” (and not solely on behalf of the employee himself).

The NLRB found the comments above to be concerted activity.  “…Laff and Woods were discussing common concerns regarding terms and conditions of their employment specifically relating to how calls are forwarded and whose responsibility it was to field calls.”

While there is more analysis of the evidence (including an adverse inference resulting from Quickens’ failure to have Woods testify), the end result is that the NLRB found that Laff and Woods had engaged in protected activity and, therefore, the discharge and discipline actions were unlawful. The statements, regardless of who made them, did not lose their protection because of the use of profanity given that management often used or tolerated profanity in the workplace.

Moreover, the NLRB found the directive in the email to contain unlawful rules that prohibited employees from discussing their terms and conditions of employment and their pay. The instruction was a “serious impediment to, and a clear restraint upon, and interference with the employees’ Section 7 rights to engage in protected and concerted activity.” The violation included the instruction that “Never, EVER should we be swearing in the bathroom, especially about clients,” and the prohibition against stating, “that clients that call in are wasting your (*swear word*) time.” The NLRB noted that, in fact, the rules were published after Laff and Woods had engaged in protected and concerted activity and punished for doing so.

Finally, the NLRB found the separation documents given to Laff requiring him to “keep secret all proprietary / confidential information, including ‘client information, employee information, financial information, or any other internal information about Quicken Loans’” to be so broad as to potentially restrict Section 7 activities. So was the rule restricting “employees from contacting or soliciting Quicken Loans’ employees or clients ‘for any reason’ to be overly broad.” The NLRB also found the interrogation to be coercive and the email gave the impression that management may be conducting surveillance of employees, both in violation of the NLRA.

If this opinion is not enough to send chills down your back, read the NLRB General Counsel’s memo from last year which should have resulted in your review of numerous policies including social media, confidentiality, etc.  There can be no doubt just how broadly the current NLRB interprets Section 7 rights.  If you are unsure whether your policies and practices are in compliance, you should consult with an experienced labor/employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. April  2016.