Corporate Funeral Home Argues Religious Belief Exempts Title VII Anti-Discrimination Law

Major world religionsOn May 17, 2017, attorneys for a corporation operating a Detroit funeral home that fired a transgender employee filed its appeal brief. The brief argues that the corporation could fire a transgender employee who refused to follow its sex-specific dress code because allowing her to wear women’s clothes at work would violate the religious beliefs of the corporation’s majority shareholder.

Background of the Transgender Discrimination Case

The case, EEOC v. R.G. &. G.R. Harris Funeral, was covered here (Religion and LGBT Discrimination – Who is Protected Under Title VII) and here (Corporate Religious Beliefs – A New Defense in Employment Discrimination Claims?). The EEOC filed a complaint in district court alleging that R.G.’s discharge of Stephens constituted unlawful discrimination because of Stephens’s transgender status, because of Stephens’s “transition from male to female,” and because of sex stereotyping. 

R.G. moved to dismiss the wrongful termination claim for failure to state a claim on which relief can be granted. The district court, by Judge Sean Cox, ruled that Title VII’s prohibition of discrimination “because of . . . sex” does not include discrimination based on transgender status. The district court further ruled that the EEOC’s complaint stated a claim for relief for impermissible sex stereotyping in violation of Title VII. However, the district court concluded that the Religious Freedom Restoration Act (RFRA) exempted R.G. from the enforcement of Title VII. 

The Funeral Home’s Argument on Appeal

On appeal, attorneys for the corporate funeral home argued on behalf of the majority shareholder, Thomas Rost, that

Allowing [the former employee] to contravene the dress code and wear a female uniform in the public-facing role of funeral director would have caused R.G. to convey a message in direct conflict with Rost’s religious belief that a person’s sex is an immutable, Godgiven gift, thus violating Rost’s religious convictions.

The corporation’s attorneys further argued that “Rost’s “faith compels [him]” to “serve grieving people” as he does through [the corporation].” 

Rost’s “faith compels [him]” to “serve grieving people” as he does through [the corporation] … In other words, R.G. is the embodiment of Rost’s religious exercise. Requiring R.G. to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with—and thus impose a substantial burden on—R.G.’s ability to carry out Rost’s religious exercise of caring for the grieving.  

This case should be closely watched by companies and their HR professionals. This is because of the potential implications this case has for Title VII and discrimination claims. Specifically, the corporation is arguing Title VII workplace protections against discrimination are not exempted from RFRA’s reach, meaning any employer or its owners, shareholders, or members could argue religious beliefs take priority over anti-discrimination laws.  

A copy of the corporation’s brief is available here, EEOC v. R.G. &. G.R. Harris Funeral, May 17, 2017). 

For more information about this case or federal and Michigan anti-discrimination employment law, contact attorney Jason Shinn. Mr. Shinn has been representing businesses and individuals when it comes to employment discrimination laws since 2001. 

The Risks of Relying on Free Online Legal Advice

The saying, “you get what you pay for,” is cliché. But it is no less true. And it is an accurate cliché when it comes to online legal advice.

The Danger of Relying on Legal Advice from Free Q&A Websites

Various websites offer answers to legal questions from attorneys who register with the Q&A site and sign up. And this is not entirely a bad thing. But it isn’t a good thing if you are relying exclusively on free, online legal advice. Case in point, earlier this week I saw an example of why you should be cautious about only using a free legal Q&A site to make decisions.

SpecifFree Legal Adviceically, a user in Livonia Michigan posted an employment law question about jury duty and disciplinary action. To be clear, this is public information and not a client of my law firm. The questioner explained that he had been summoned for jury duty, but was excused at 2:30 PM. The employee had been scheduled to work 6 PM to 9 PM. However, the employee called off prior to being excused from jury duty. The questioner disclosed that he was later disciplined for not working this shift.

A range of attorneys responded. The self-identified practice areas for these attorneys’ ranged from real estate to auto accident to employment attorneys. Further, they included attorneys licensed in Michigan and those license in other states.

But one response exemplifies the concerns about relying exclusively on “free” legal advice. The response, presumably from a well-intentioned attorney reads,

To my knowledge this is best answered by corporate policy .. not a law … I am afraid you are probably fighting a loosing battle.

The problem with this response is that the questioner’s issue is covered by a law. That law, MCL § 600.1348, makes it illegal for an employer to discipline an employee who complies with his or her jury duty obligations. Further, the statute expressly covers the situation presented by the questioner, i.e., serving jury duty when scheduled to work outside of jury duty hours.

I’m not saying that credible legal Q&A sites have no place. In fact, I frequently I contribute to the legal Q&A called Avvo. Mostly I consider my contribution to be a deposit towards “good karma.” To a lesser extent, it may be an investment in a new client. But my responses, however, are limited to the corner of the legal universe I focus on, e.g. employment and noncompete law. I don’t stray beyond these legal areas. And if I don’t know the answer, I won’t respond or I will provide points of consideration with a recommendation to consult with an attorney. I’m not saying my approach is unique. But it is not uncommon for attorneys to answer questions outside of their practice areas or the states where they are licensed to practice.

Recommendations for Using Free Legal Q&A Websites

So if you will use a Q&A legal site, here are a few points to consider:

  • First, using a legal Q&A site should be an initial step in addressing a legal issue. But it should be one of several steps in looking at a legal issue.
  • Second, consider the background of the attorney providing any answer. For example, if your question focuses on a whistleblower issue, disregard an answer from an attorney who identifies as practicing law in real estate or wills.
  • Third, be careful about how much information you disclose. When you consult directly with an attorney, your communications are protected by the attorney-client privilege. This is true even if you later decide not to work with that attorney. However, the same protections do not apply to online communications. Assume any information disclosed online is not privileged.
  • Fourth, no matter how good a legal Q&A site may be, it will not replace the experience and insight you will gain from consulting directly with an attorney. Often an initial consultation is free or capped at an agreed upon amount. So think of it as an investment in getting legal advice tailored to your situation.

For more information about employment and noncompete law, contact attorney Jason Shinn.

Proposed Legislation To Improve and Expand Michigan Business Courts

Noncompete lawProposed legislation would revise Michigan’s business courts. It would provide several revisions, including a change that will be important concerning non-compete disputes.

Michigan experimented with creating a “business court” docket in 2011 in Macomb County Circuit Court. The experiment expanded into Kent County in March 2012 and Oakland County in July 2012. Then in 2013, Michigan launched its business court program statewide in circuit courts.

The proposed legislation is Senate Bill 333. It focuses on expanding cases eligible for the business court docket and removing others not suited for the program.

Specifically, the legislation would amend the Revised Judicature Act to “specify that a business court would have jurisdiction over business and commercial disputes in which equitable or declaratory relief was sought or in which the matter otherwise met circuit court jurisdictional requirements, instead of business and commercial disputes in which the amount in controversy exceeds $25,000.” See the bill analysis by the Senate Fiscal Agency.

In our experience, the business court program has been very successful in streamlining and bringing consistency to cases meeting the definition of a “business dispute.” However, the proposed legislation would improve the resolution of noncompete disputes. This is because litigants will frequently seek declaratory relief as to the enforceability of noncompete restrictions. Often, this strategy is pursued before any damages have occurred. But without such damages, the noncompmete dispute may not be eligible to be heard by the business court. But if this proposed change becomes law, business courts can decide equitable or declaratory relief without reference to the monetary dispute.

Michigan Lawyer’s Weekly (by Lee Dryden), reports that the proposed bill has wide support from legislators and judges. Specifically, the Senate Judiciary Committee approved the bill May 2. Further, business court judges James M. Alexander of Oakland County and Christopher P. Yates of Kent County spoke in favor of it, along with Michigan Supreme Court Justice Bridget M. McCormack. The legislation also has support from the Michigan Judges Association and State Court Administrative Office.

We will continue to monitor this legislation.

Uber’s Autonomous Vehicle Program Continues but Without its Key Engineer

Trade secret self-driving carsOn Monday, May 15, 2017, Uber Technologies, Inc. narrowly sidestepped what could have been a complete shutdown of its autonomous vehicle program. Specifically, a federal district court judge declined to issue a temporary injunction against Uber and its self-driving car program. A copy of the order is available here, Waymo LLC v. Uber Technologies, Inc. (5-15-2107).

However, the District Court enjoined a key engineer leading Uber’s autonomous vehicle program from working on a critical component of the self-driving vehicle technology during the litigation.

The injunction arose out of a case filed in February 2017. The suit accused Uber and Google/Waymo’s former engineer of stealing trade secrets to develop an autonomous vehicle. The engineer, Anthony Levandowski, was an autonomous vehicle guru while at Waymo.

As we reported, Waymo alleged that Levandowski downloaded approximately 14,000 files comprising. According to the lawsuit, this amounted to 9.7 GB of confidential autonomous vehicle software data. The suit claims Levandowski missapropriated the data to help develop Uber’s autonomous vehicle program.

The New York Times reported on May 12, 2017 (by Mike Isaac) the judge previously referred the case to the United States Attorney’s office for possible theft of trade secrets. Such theft carries the possibility of criminal charges for those involved if the Department of Justice pursued the case. Anticipating as much, Mr. Levandowski decided to plead the Fifth Amendment to preserve the right against self-incrimination.

In today’s ruling, the judge reasoned,

Waymo L.L.C Has shown compelling evidence that its former star engineer, Anthony Levandowski, downloaded over 14,000 confidential files from Waymo immediately before leaving his employment there … Significantly, the evidence indicates that, during the acquisition, Uber likely knew or at least should have known that Levandowski had taken and retained possession of Waymo’s confidential files.

Having represented companies and engineers in pursuing and defending against trade secret litigation, the issues addressed in the court’s order are all too common. And while Uber can “spin” a partial victory from not having its autonomous vehicle program enjoined during the pendency of the litigation, this may prove to be a hollow victory.

First, Levandowski appears to be key to its self-driving car software development. Right now he is temporarily sidelined per the court’s order. But it would not be a surprise if Levandowski’s employment was eventually terminated (and likely sooner than later if criminal charges are pursued). Second, if there is evidence that Uber knew of the misappropriated trade secrets, its entire autonomous vehicle program could be enjoined, besides facing other civil or criminal sanctions.

We will continue to monitor this case. Meanwhile, the Waymo/Uber lawsuit is an important reminder to carefully evaluate measures to prevent new hires from wrongfully using trade secrets and confidential information of competitors. Such measures include having the right policies. They also include educating HR professionals and managers about the need to discourage and even police against such misappropriation.

For more information about trade secret misappropriation or the issues raised in this post, contact attorney Jason Shinn. Mr. Shinn routinely represents individuals and companies and trade secret and noncompete litigation in federal and Michigan lawsuits.

Revising Non-compete Law to Eliminate Unfair Competition

Noncompete Agreement and Unfair AdvantageNon-compete agreements are intended to prevent unfair competition. But they often create unfair advantages against employees and start-ups. And these unfair advantages adversely affect individuals and the overall economy. At least that is the take-away from a recent op-ed in the New York Times.

Noncompete Restrictions and the Economy

Specifically, Prof. Orly Lobel wrote in Companies Compete but Won’t Let Their Workers Do the Same

Noncompete agreements, like other anti­competitive practices, poison our economy in larger, less tangible ways. There is strong data showing they reduce employee motivation, entrepreneurship, and sharing of knowledge, the fundamental building blocks of innovation and economic growth.

In support, Professor Lobel cites to research from the Treasury Department:

The evidence shows wages in states that enforce noncompetes are 10 percent lower than in states that restrict their use. The Treasury Department concluded in its recent report that ‘by reducing workers’ job options, noncompete agreements force workers to accept lower wages in their current jobs, and may sometimes induce workers to leave their occupations entirely, forgoing accumulated human capital.’

Noncompete Agreements in Michigan

In Michigan, like many states, non-compete agreements may be enforceable if certain threshold requirements are met. Among these requirements:

  1. It must be reasonable as to its duration, geographical scope, and the type of employment or line of business restricted.
  2. The enforceability of a noncompete must protect against the employee’s gaining some unfair advantage in competition with the employer. However, the restrictions cannot prohibit the employee from using general knowledge or skill.
  3. It must protect an employer’s reasonable competitive business interests.

See St. Clair Medical, P.C. v. Borgiel, 270 Mich. App. 506 (2006).

In addition to the concerns raised by Professor Lobel, it should also be noted that former employers seldom need to actually establish these elements in order to prevent an individual from working for a competitor. Instead, it is often enough to send what is called a “cease and desist” letter to the individual and new employer that threatens to sue to enforce the post-employment restrictions. This, in turn, frequently results in termination or an unpaid leave to (hopefully) resolve the noncompete dispute. Thus, even where the enforceability of the noncompete agreement is questionable, a company can prevent the individual from working.

For example, we represented an engineer in a noncompete dispute. The engineer’s employer was closing the office in the state where the engineer worked. He was given the option to relocate him and his family to another state. Instead, he chose to accept a position with a state college. But the employer sought to enforce its non-compete restrictions to prevent this employment. Ultimately, the judge agreed with our position that the non-compete was not likely to be violated by accepting the college position. But by that time, the college had hired another engineer for the position.

This example shows how employees can win a non-compete dispute while still losing. Other issues remained to be resolved in that example, but, unfortunately, the employment opportunity was gone.

A modest Proposal to Revise Michigan’s Noncompete Law

In our experience representing employers and individuals in non-compete disputes, we believe such post-employment restrictions – if used appropriately – have a legitimate and important purpose. But all too often companies or their attorneys often overreach.

In those instances, Michigan would do well to revise its non-compete statute to include a bad-faith provision. Michigan’s trade secret statute already contains a provision that allows a defendant to recover attorney’s fees if a trade secret misappropriation claim was brought in bad faith. Adding a similar provision to Michigan’s noncompete statute could deter frivolous non-compete disputes or provide some measure of recovery to an individual subject to such a lawsuit.

For more information about this article or Michigan non-compete law, contact attorney Jason Shinn. Mr. Shinn has practiced in this area since 2001 on behalf of employers and employees.

Is a Noncompete Enforceable if an Employee is Laid-Off?

noncompete agreementLast week, ESPN laid off 100 employees. This included well-known SportsCenter anchors and popular writers who are subject to noncompete restrictions. A lot of ink has been spilled about the causes for these layoffs. See, for example,

A lot of ink has been spilled about the causes for these layoffs. See, for example, ESPN is Not Doomed. But one topic near-and-dear to our attorneys is what happens to the ESPN employees let go who are under noncompete restrictions.

John Ourand of Sports Business Daily touched upon this issue when he reported in Tough trend for Talent,

ESPN agreed to pay out full contracts, which in some cases lasted more than five years … Many have non-compete clauses in their deals, which means they can’t report their beats, even on social media, until their contracts end or they are released. In order to get around the non-compete clauses, they would have to report on entirely different beats than the ones they spent years developing at ESPN.

Now there are worse things in life than getting paid to not work for five years to comply with your noncompete obligations. But the reality is that many employees are not going to have this benefit. In fact, often employees are fortunate to get two-weeks severance. So what happens when you’re employment is restricted and you receive limited or no severance – is the noncompete still enforceable?

Enforcing Noncompete Agreements After the Employment Ends

Our law firm specializes in noncompete law when it comes to representing both companies and employees. A common question from both is what happens to a noncompete restriction if the employee is fired or laid-off due to no fault of the employee.

The short answer is that it depends on a few issues (I know, typical attorney answer). First, most states, including Michigan, do not preclude enforcement of a post-employment restriction in a noncompete agreement simply because the employee was fired, laid-off, or the employment ended due to no fault of the employee or for reasons outside the control of the employee.

Second, noncompete restrictions generally include a provision that it will be enforceable regardless of the reason the employment ended. In such an instance, the reasons for termination becomes irrelevant. From an employer’s perspective, it is important to carefully draft this provision to avoid litigating the reasons for an employee’s termination.

Now there are still significant threshold requirements that must be met to have an enforceable noncompete agreement. Such considerations include whether it protects an employer’s reasonable competitive interest, whether it is limited in duration and geographic scope, etc. But the reasons for the termination will not be a legal bar for enforcement if it is properly drafted.

For more information about noncompete agreements and best practices for enforcing them or strategies for challenging their enforceability, contact attorney Jason Shinn. Since 2001, he has worked with companies, executives, sales representatives, and other employees to address noncompete disputes. Mr. Shinn has extensive experience in obtaining and defending against temporary restraining orders and other remedies involved in noncompete litigation.

Also to obtain a free report, 10 Noncompete Mistakes You Can’t Afford to Make, follow this link and complete the contact form (include “noncompete mistakes” in the subject line).

Religion and LGBT Discrimination – Who is Protected Under Title VII

Employer Religious Freedom and LGBT RightsLast year we reported on an important LGBT case involving a Michigan corporation that fired a transgender female employee (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.). The Equal Employment Opportunity Commission (EEOC) argued Title VII’s ban on sex discrimination prohibits bias based on gender identity. The funeral home’s majority shareholder claimed the termination was shielded by the Religious Freedom Restoration Act (RFRA). The district court judge ultimately agreed, but the case has been appealed.

The District Court’s Decision – Title VII does not Expressly Cover Transgender and Protecting Corporate Religious Belief

The district court reasoned  transgender status is not a protected class under Title VII. But a transgender plaintiff may still bring a claim under Title VII under a sex-stereotyping gender-discrimination claim if that person’s failure to conform to sex stereotypes was the driving force behind the termination.

However, the district court further concluded that the funeral home’s majority shareholder, Thomas Rost, had a religious freedom defense to the Title VII claim under the RFRA. Mr. Rost believed he would be “violating God’s commands” if he allowed workers to “deny their sex” while representing the funeral home.

The RFRA generally bars government action that substantially burdens an “individual’s” sincerely held religious beliefs if the government didn’t take the “least restrictive means” to achieve its interests. 42 U.S.C. §§ 2000bb-1(a),(b). By its terms, the RFRA protects religious exercise, not religious beliefs. See 42 U.S.C. § 2000bb-1(a).

Religious Exemption – Appeal to a Higher Power

The case was appealed to the Sixth Circuit. Interestingly, numerous clergy and religious organizations, including the Anti-Defamation League, Muslim Advocates, the Interfaith Alliance Foundation, the People for the American Way Foundation, and 76 Christian and Jewish clergy joined in a friend-of-the-court brief asking the federal appeals court to reverse the decision. This brief was filed by the Americans United for Separation of Church and State. Here is a passage:

If the district court’s decision is allowed to stand, ‘for-profit businesses would have broad—indeed, nearly limitless—license to engage in unlawful and invidious discrimination through a simple expedient: describing their decision as religiously based.

* * *

The [Religious Freedom Restoration Act] provides important safeguards for religious exercise. But it does not and cannot upend all employment-discrimination law.

Where the EEOC and Courts Stand on Religious Defense and LGBT Protections

The EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. If the Sixth Circuit does not reverse the EEOC v. R.G. & G.R. Funeral Homes case, it would mean secular employers could use religious belief under the RFRA to defeat LGBT bias claims.

Ultimately, however, it is likely the issue will be reviewed by the U.S. Supreme Court. This is because there is currently a split among the Circuits. The Seventh Circuit Court of Appeals recently followed the EEOC’s interpretation and concluded on April 4, 2017, that discrimination based on sexual orientation is a form of sex discrimination. Hively v Ivy Tech Community College of Indiana. In contrast, the Second Circuit in Anonymous v. Omnicom Grp., Inc. (2017) and Eleventh Circuits in Evans v. Ga. Reg’l Hosp., (2017) concluded that Title VII did not extend to sexual orientation. In any event, this is an issue HR professionals and companies will need to watch.

For more information about complying with federal or Michigan employment discrimination laws, as well as litigating employment discrimination claims, contact employment attorney Jason Shinn.

Employees Wanted – Work at your Own Risk

Workplace InjuryBloomberg Business Week recently featured a story about the South’s manufacturing renaissance. The article, by Peter Waldman, is titled Inside Alabama’s Auto Jobs Boom: Cheap Wages, Little Training, Crushed Limbs.

The workplace injuries and deaths described are simply horrific. Here are a few examples:

  • A female employee at auto parts supplier Ajin USA was impaled while trying to fix a robot. The robot unexpectedly turned on and impaling her upper body with a pair of welding tips. Ajin, per OSHA, had never given workers safety locks and training on how to use them.
  • A male employee lost his arm. This happened after a heated die press that stamps metal parts slammed onto his arms. He was trapped like this for an hour while his flesh burned inside the heated press. When emergency crews finally freed him, his left hand was “flat like a pancake.”
  • In 2015, a 33-year-old technician suffered third-degree burns all over his upper body at Nakanishi Manufacturing Corp.’s plant in Winterville, Ga. This incident happened after four previous fires in the factory’s dust-collection system. Last year, OSHA levied a $145,000 fine (later negotiated down to $105,000).

Bloomberg reported that the incidents of workplace injuries far outpaced the rest of the country, in particular Michigan. Specifically,

[T]he incidence of traumatic injuries in Alabama’s auto parts plants remains 9 percent higher than in Michigan’s and 8 percent higher than in Ohio’s. In 2015 the chances of losing a finger or limb in an Alabama parts factory was double the amputation risk nationally for the industry, 65 percent higher than in Michigan and 33 percent above the rate in Ohio.

* * *

OSHA records obtained by Bloomberg document burning flesh, crushed limbs, dismembered body parts, and a flailing fall into a vat of acid. The files read like Upton Sinclair, or even Dickens.

These examples are typical of recent violations. Here are a couple of examples:

  • In Sec’y of Labor v. Martin Mech. Contractors, Inc., (4/17/17), a Georgia contracting company whose employee died after falling through a skylight was assessed a $49,000 penalty. It was determined the company had inadequate fall protection training program.
  • Exide Technologies, a Kansas battery maker, faces $149K fine over lead hazards for failing to protect workers from overexposure to lead at its manufacturing plant in Kansas. Exide was cited by the OSHA for one serious and three repeat violations.

Work Place Fatality Was on the Decline

Data from the Bureau of Labor Statistics shows that the number of deaths for every 100,000 full-time worker equivalents declined from 4.2 to 3.7 during the Bush administration. Further declines continued under the Obama administration going from 3.6 to 3.3.

However, there is cause for concern these reductions in worker mortality may cease. This is because, within days of taking office, President Trump invited American manufacturers to recommend ways the government could cut regulations. The Department of Labor was the second most popular target in comments submitted. The Environmental Protection Agency was the number of one target.

Further, the Trump administration has proposed to cut the Labor Department’s fiscal year 2018 budget by 21 percent. And President Trump has insisted on eliminating two rules for every new rule.

President Trump ran on a promise to make America Great Again. But that America may not be so great for factory workers and other blue-collar employees when it comes to workplace safety. Hopefully, things won’t get worse.

Employment Agreements Found Unlawful by NLRB

Employment ArbitrationEmployers should carefully evaluate their employment agreements with a focus on eliminating provisions that may be unlawful, given a recent National Labor Relations Board (NLRB) ruling. Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See

Specifically, DISH Network was ordered on April 13, 2017, to revise or rescind its employment agreements after the NLRB found the agreements contain provisions that violate federal labor law. See DISH Network, LLC, 365 N.L.R.B. No. 47 (4/13/17). This order applies to DISH Network’s entire U.S. workforce.

Since October 2013, DISH Network required all applicants to sign its mandatory arbitration agreements.  These agreements required employees at U.S. locations to arbitrate “any claim, controversy and/or dispute” against the employer, “whenever and wherever brought.”

Also, the arbitration agreement contained a strict confidentiality provision requiring that “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential …”

An employer violates Section 8(a)(1) if it maintains an arbitration policy that employees would reasonably believe interferes with their ability to file a Board charge or to access the Board’s processes. Applying this, the Board had easily ruled that employees would reasonably understand the DISH Network agreement as prohibiting them from filing unfair labor practice charges or using the NLRB’s administrative processes. Accordingly, the agreement was unlawful.

Additionally, the Board found the agreement’s confidentiality requirement independently violated the NLRA (Section 8(a)(1)). Applying this section, the Board ruled that DISH Network’s agreement was a workplace rule that prohibits the discussion of terms and conditions of employment by prohibiting employees from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards.” As such, the rule was unlawfully overbroad.

Considerations for your Company’s Employment Agreements

Decisions like this are reminders that broad company rules prohibiting employees from discussing workplace issues are likely to be inconsistent with NLRB rules and, therefore, unlawful.

So employers should review their employment agreements to eliminate blanket prohibitions. It is also recommended to expressly note that the agreement is not intended to interfere or restrict an employee’s rights under the NLRA or to file any NLRB charges. Such carve out provisions may save an agreement from being found unlawful.

For more practical advice and best practices for improving your company’s employment agreements and other policies, contact, employment attorney Jason Shinn. He routinely works with companies to implement HR best practices or update their existing policies to comply with federal and Michigan employment laws.