Saturday’s headline in The Detroit Free Press states, “Quicken Loans loses labor case, vows appeal.” The headline in MLive reads, “Quicken Loans, Gilbert companies violated Labor Relations Act, judge rules.” In reality Quicken Loans is just another non-union employer with handbook rules that used to be innocuous but no longer are, according to today’s pro-labor NLRB.

The rules in Quicken Loans’ “Big Book” that the NLRB challenged, like those in most employer handbooks that have not been recently reviewed and updated, revolved around what employees could and could not talk about with outsiders and each other. As ASE has counselled consistently regarding handbook policies, the NLRB regards such rules in the Big Book as the one saying employees should not disclose “non-public financial or operational information to non-employees” and the one asking them to “dress and behave in a professional manner” as too broadly stated. This, even though the former rule seems a common-sense standard for keeping the company’s proprietary information proprietary, and the latter a completely innocuous piece of advice akin to a mother admonishing her children to dress neatly and mind their manners when they visit their relatives.

Further, in the case of the Big Book statement intended to give employees a common-sense reference point on the use and abuse of social media, the NLRB administrative judge held that Quicken Loans should not have said, “If it doesn’t belong on the front page of the New York Times, don’t put it on-line.”

These formerly ubiquitous policies now have to be seriously revised or simply removed by employers not wanting the NLRB to come down on them the way it has on Quicken Loans. Until recently, those employers likely had no idea these statements could be interpreted as breaching employees’ rights to engage in protected concerted activity under the National Labor Relations Act. Arguably, neither did their employees.

In the Quicken Loans case the company fired an employee allegedly for talking to the Communications Workers of America about organizing. Even the NLRB seemed to doubt this scenario and, unable to prove it was the cause of the firing, did not bring a case over that issue. But it did take issue with Quicken Loan’s Big Book rules, and the NLRB Administrative Law Judge agreed. The judge imposed the NLRB’s standard punishment for rule publication violations against Quicken Loans. He ordered Quicken Loans to make 24 changes to the employee rules and post a notice to workers that the company should not have put such rules in place and advising employees of their right to organize a union.

In taking on Quicken Loans the NLRB chose an employer that doesn’t quietly shrink away, rightly or wrongly, when told by the government it may be misapplying the law. Quicken Loans, one may recall, took on the Department of Labor through the courts over its exempt classification of its Loan Officer position, and eventually won.  Quicken Loans and five of its subsidiaries will appeal this ALJ decision to the full NLRB Board, where it will again most likely lose given the politics of the current Board. But then Quicken Loans will have the option to taking the decision to the federal courts.

If it does, non-union employers will be hoping Quicken Loans prevails, knowing that without such challenges the pro-labor NLRB will continue to pressure non-union employers by challenging their policies as somehow hindering protected concerted activity. Note that in the current case the worker did not have much of an unfair labor practice claim, so the NLRB stepped in to find an issue to pursue.

In the meantime employers that have not had their handbook reviewed in the last couple of years should seriously consider such a review. They need to realize that if a wrongful employment complaint against them goes to the NLRB, that agency will go straight to the company’s employee handbook in search of policy statements it can deem to be restricting employees’ right to discuss terms and conditions of employment, and wages and benefits, with each other or with outside parties. That could start a process that no non-union employer would welcome.

ASE reviews employee handbooks for legal compliance, content and layout providing a comprehensive set of recommendations to upgrade the document. If interested in this service, email Michael Burns or call him at 248-223-8039.

Sources: The Detroit Free Press 4/9/2016; MLive 4/9/2016