Michael Woods, a mortgage banker at Quicken Loans, was having a bad day at work. A customer Woods had helped four years ago had been trying to get in touch with a Client Specialist; the company routed the call to Woods because of their prior relationship. He aired his grievance to a co-worker, Austin Laff, while they were in the bathroom together. “The client should get in touch with a fucking Client Care Specialist and quit wasting my fucking time.”
Jorge Mendez, a supervisor, overheard this conversation from a stall. He responded with an all-employee email reminding everyone of proper conduct in public areas. “Never, EVER, should we be swearing in the bathroom especially about clients.”
In Quicken Loans, Inc., the NLRB held that an employees’ bathroom grousing about a customer was not protected concerted activity.
There is no record evidence that employees as a group had any preexisting concerns about the routing of customer calls. Further, … [n]either employee was seeking to initiate or induce group action about this issue. Woods complained that the client call was a waste of his time, but there is no evidence that he sought thereby to move Laff to join him in protest of the routing incident. Similarly, Laff’s response did not suggest any contemplation of group action.
But even if the conversation qualifies as concerted action between Woods and Laff with respect to the routing of customer calls, we find that it was not for a goal of “mutual aid or protection” and, therefore, would still be unprotected. Laff did not testify about any goal of his conversation with Woods, much less that it involved a goal of improving the working conditions shared by them or with coworkers.
While this case is interesting for its discussion of the legal concept of “protected concerted activity” under Section 7 of the National Labor Relations Act, I want to focus on another issue—the supervisor’s (albeit coarse and unprofessional) admonition against discussing clients in the bathroom.
Despite the fact that we use bathrooms to engage in the most private of personal activities, public restrooms are not fit for private conversations. One never knows who is lurking in a stall, or who will open the outer door and enter at the wrong time.
My suggestion to employers is to include within your confidentiality policy a reminder to employees not to use the restroom for private conversations. One should assume that everything said in a public bathroom is not private. If you need to discuss something in confidence, use an office or other room in which you can control access. These employees showed poor professional judgment, and suffered the consequences.
This post originally appeared on the Ohio Employer’s Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at firstname.lastname@example.org, via telephone at 216-831-0042, on LinkedIn, and on Twitter.