Quicken case could define worker free-speech rules

The National Labor Relations Board says mortgage giant Quicken Loans overly restricts its employees' free speech and filed a complaint that could have long-ranging effects on what workers are allowed to say about their companies on social media sites such as Facebook and Twitter.

The NLRB complaint is to go to trial in Detroit before a federal administrative law judge on Nov. 2.

Quicken has denied that its work rules spelled out in an employee handbook are overly restrictive. The Detroit-based company is fighting the complaint. Aaron Emerson, a Quicken spokesman, called the complaint "completely absurd."

"Quicken Loans stands firmly behind its common-sense employment policies ... Quicken Loans will fight this baseless case and strongly believes justice will prevail," he said.

The Quicken employee rules, known as the Big Book, is a set of internal regulations that cautions workers against speaking to the media and restricts any other conduct the company deems damaging to its interests.

The NLRB complaint against Quicken says its worker rules violate the National Labor Relations Act that permits workers to discuss pay and other policies for the purposes of organizing for collective bargaining. The agency is not seeking monetary damages but wants Quicken to rewrite its employee rules and educate employees about their rights under the law.

In recent years, the NLRB, the New Deal-era federal agency created to safeguard the rights of employees to join unions, has sparred with various companies over restrictions on worker free speech, including use of social media to comment about their workplaces. The board settled recently with Wendy's International, for example, over employee rules it says restricted speech.

The complaint by the NLRB’s Detroit regional office was filed in July and has been generating legal paperwork in the months since. It has been overshadowed by the U.S. Justice Department’s pending lawsuit against Quicken for allegedly abusing the federally backed mortgage rules to generate more profits.

Marick Masters, a professor and director of labor studies at Wayne State University, said the NLRB generally allows companies to protect their trade secrets but not to bar employees from discussing more routine matters such as their salaries or wage levels.

“Their tendency is to take a pretty dim view of policies that are over-broad,” Masters said. “If you tell an employee that they can’t complain to other employees about their working conditions, you’re going to get in trouble for that. If you tell an employee that they can’t talk to people on the outside about their working conditions, you’re going to get in trouble for that.”

The NLRB case stems from a complaint by a former Quicken employee, Hugh MacEachern, 61, of Taylor. MacEachern was hired at Quicken in July 2013 after working there for several months as a temporary employee. He was fired in December 2014 after he told Quicken he was speaking with the Communications Workers of America about starting a union at Quicken. He claims Quicken fired him as retribution.

But Terry Morgan, the director of the NLRB's regional office in Detroit, said her office, after investigating, has declined to file a case over MacEachern’s firing. But it did file a complaint against Quicken over its employee handbook rules. Morgan said MacEachern is likely to be a witness for the government in the upcoming hearing.

The NLRB has been focused lately on enforcing federal law that ensures the rights of workers to discuss general employment topics, such as pay and workplace complaints, to each other or through social media channels.

In a March 18 memo to all NLRB field officials, Richard Griffin, the board's general counsel in Washington, D.C., offered guidance on recent cases involving employer rules. He noted that the NLRB had recently settled cases against Wendy's International and other companies, and said that "employees have a ... right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with non-employees, such as union representatives."

Griffin's memo continued: "Thus, an employer's confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment — such as wages, hours or workplace complaints — or that employees would reasonably understand to prohibit such discussions, violates the Act."

Among the types of overly restrictive rules from various cases that Griffin's memo called unlawful were such restrictions as "(I)f something is not public information, you must not share it" and "Sharing of (overheard conversations at the work site) with your coworkers, the public, or anyone outside of your immediate work group is strictly prohibited."

Griffin noted in his memo that employees have the right to criticize or protest their employer's labor policies or treatment of employees, and even to express that dissatisfaction in ways that might be considered disrespectful, negative or rude. Employer rules that restrict that free speech "will be found unlawfully over-broad."

Contact John Gallagher: 313-222-5173 or gallagher@freepress.com. Follow him on Twitter @jgallagherfreep.