Dispute Resolution PolicyTHIS BOOKLET CONTAINS TCF'S DISPUTE RESOLUTION POLICY (THE "DRP") AND CREATES A BINDING CONTRACT BETWEEN, YOU AND TCF TO RESOLVE LEGAL CLAIMS WITHOUT GOING TO COURT. PLEASE READ THIS BOOKLET CAREFULLY AS IT CONTAINS TERMS AND DEADLINES THAT AFFECT YOUR RIGHTS, AND KEEP IT FOR YOUR FUTURE REFERENCE. THE EFFECTIVE DATE OF THIS DRP IS February 1, 2009 (THE "EFFECTIVE DATE").
By applying for, accepting or continuing employment with TCF after the Effective Date, you agree with TCF, and TCF agrees with you, to resolve all Covered Claims asserted after the Effective Date, regardless of whether such Covered Claims arose before, on or after the Effective Date, pursuant to this DRP. This means that you and TCF will not have a right to bring a lawsuit against one another or have a jury trial regarding Covered Claims. Under this DRP, you and TCF will not have the right to consolidate covered claims or to participate as a representative or member of any class of persons or as a private attorney general, in any lawsuit or arbitration concerning any Covered Claim. You have the right to reject arbitration under this DRP within the time frames stated below under the caption "Right to Reject Arbitration." If you reject arbitration within these timeframes, neither you nor TCF are required to submit a Covered Claim to final and binding arbitration.
At TCF, we work together to provide the best service possible for our customers. On occasion, during the course of serving our customers, a situation may present itself where there is a disagreement among co-workers or between an employee and TCF. In almost every case, employees can easily bring disagreements to satisfactory resolution by communicating with each other or a supervisor in a professional manner. For those rare occasions where this informal communication does not bring the disagreement to resolution, TCF has crafted a process, referred to as the TCF Dispute Resolution Policy, or "DRP."
Under this DRP, you are entitled to express your good faith concerns without worrying about retaliation. You and TCF are able to achieve a binding resolution of legal claims without going to court. TCF is committed to this process, which means that you are bound by this DRP as a condition of being considered for a job at TCF, and of initial or continued employment with TCF. Of course, fair is fair, and TCF, not just its employees, agrees to be bound by this DRP.
The purpose of this DRP is to improve the process for airing and settling almost every kind of workplace dispute. For many if not most workplace conflicts, a calm and respectful talk with a co-worker involved in a conflict or a supervisor may be all that is necessary to solve the problem. This DRP applies to more serious conflicts -- "Covered Claims" defined below-- with up to four levels of review: Human Resources Review (Level 1); Management Panel Review (Level 2); Mediation (Level 3); and Arbitration (Level 4). This DRP takes the place of the judicial system as a method of dispute resolution. This DRP is subject to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA").
Mediation and Arbitration, the final two levels of this DRP, have many advantages. In Mediation, a neutral third party makes non-binding recommendations to the parties. Mediation can yield "win-win" results, while preserving work relationships. In Arbitration, a neutral third party makes binding determinations. Arbitration is impartial and private, and is generally quicker and less costly than litigation.
TCF strongly believes that this DRP is a better approach than the judicial system for balancing the rights and interests of individual employees with the rights and interests of TCF and all its other employees. TCF also believes that this DRP best meets TCF's need to operate its business in an efficient and economical manner.
Generally, if you are an employee below the level of Senior Vice President, or an applicant for employment at TCF for such a position, you are a "Covered Individual" and this DRP applies to you. (See "Covered Individuals" for details.) This DRP governs "Covered Claims" (as defined below) between Covered Individuals and any of the following parties: (1) TCF Financial Corporation, TCF National Bank, Winthrop Resources Corporation, TCF Equipment Finance, Inc., TCF Inventory Finance, Gateway One Lending & Finance, and their present and future parents, successors and assigns (collectively, the "TCF Companies"); (2) employee benefit plans sponsored or made available by the TCF Companies, and the sponsors, fiduciaries, administrators and affiliates of such plans (collectively, the "TCF Plans"); and (3) the directors and executive officers (Senior Vice President or above) of any of the TCF Companies ("TCF Management") (together with the TCF Companies and TCF Plans, "TCF"). This DRP provides the exclusive means for you and TCF to resolve Covered Claims.
Disagreements in the workplace are normal. TCF is a large organization, and it's only natural that the people who make up TCF won't always see things in the same way.
This DRP applies to all Covered Claims. This DRP consists of four levels, each of which is described in more detail below:
Level 1: Human Resources Review; followed, if necessary, by
Level 2: Management Panel Review; followed, if necessary, by
Level 3: Mediation; followed, if necessary, by
Level 4: Arbitration.
"Covered Claims" are legal disputes and controversies between a Covered Individual and TCF that relate to or arise from the employment relationship, a request for employment or this DRP, whether under federal or state law, including statutes, rules, regulations, ordinances and common law. Covered Claims do not include Excluded Claims (defined below). Covered Claims include, but are not limited to, the following:
- Claims relating to involuntary termination, such as layoffs and discharges (including constructive discharges);
- Employment discrimination and harassment claims, based on age, race, sex, religion, national origin, veteran status, citizenship, disability or other characteristic protected by law (including, but not limited to, claims pursuant to the Civil Rights Acts of 1866, 1964, and 1991, the Age Discrimination in Employment Act and the Americans with Disabilities Act);
- Retaliation claims for legally protected activity and/or for whistleblowing;
- Claims relating to state or federal Family and Medical Leave Acts;
- Claims relating to wages, hours, overtime, or other wage payment issues (including, but not limited to, claims pursuant to the Fair Labor Standards Act);
- Claims relating to non-competition, non-solicitation, fiduciary or confidentiality obligations or misuse of trademarks, trade secrets, business know-how or intellectual property ("Non-Competition and Intellectual Property Claims");
- Claims relating to workplace accommodation due to physical or mental disabilities;
- Tort claims, including but not limited to: intentional torts (such as assault, battery, embezzlement or theft), negligence, defamation, invasion of privacy and infliction of emotional distress.
- Claims for benefits or breach of fiduciary duty or other claims under any TCF Plan, including those covered by the Employee Retirement Income Security Act of 1974 ("ERISA"); however, claims seeking benefits under ERISA-covered group health and disability plans are excluded;
- Claims regarding any employment-related application or agreement.
- Claims regarding the events leading up to an application for employment with TCF, including, but not limited to, any advertisements, or oral or written statements; and
- Claims based on express or implied contracts.
Note: Covered Claims include disputes based on employment-related acts or omissions before, on, or after the Effective Date. Covered Claims do not include claims for which the applicable statute of limitations has expired, or which have already been resolved though binding arbitration or through a formal out-of-court settlement.
Notwithstanding the foregoing, and in addition to the excluded matters described in Item 9 above under the caption “Covered Claims,” the following “Excluded Claims” are not subject to this DRP:
- Claims for workers’ compensation, violations of specific safety requirements or unemployment compensation benefits;
- Claims involving patents or inventions;
- Claims that do not involve a Covered Individual’s work or employment relationship to TCF;
- Criminal claims;
- Any claim a Covered Individual asserts in small claims court or the equivalent court in the Covered Individual’s state, so long as such claim is not transferred to any other court;
- Claims seeking benefits under ERISA-covered group health and disability plans;
- Any dispute about the validity or enforceability of this DRP or any part of this DRP including, without limitation, the waiver (“Class Action Waiver”) described under the caption “Class Action Waiver,” the last sentence under the caption “Severability,” and/or this sentence; and
- Claims with respect to which applicable law provides that predispute arbitration agreements are invalid or unenforceable, including, without limitation, certain whistle-blower claims.
Generally, all employees and applicants for employment at TCF are Covered Individuals and are covered by the DRP process. However, officers at the Senior Vice President or higher level of TCF Financial Corporation, TCF National Bank, Winthrop Resources Corporation, TCF Equipment Finance, Inc., TCF Inventory Finance, Gateway One Lending & Finance, are not eligible for this DRP process, nor are employees of TCF Commercial Finance Canada, Inc.
In the event that you cannot resolve a Covered Claim with your immediate supervisor (or other persons in your management chain of command), you may initiate a Human Resources Review (Level 1) by contacting the Human Resources Department (“HR”) in your state. You may initiate this review in person, by telephone or in writing to HR in the state where you are or were employed. TCF recommends initiation of the Human Resources Review within thirty (30) days after you deem you are unable to resolve a Covered Claim informally, but this is a guideline, and shall not be applied to prevent the resolution of Covered Claims submitted within the applicable statute of limitations.
Upon completion of the Human Resources Review, HR shall send you a Notice of Resolution, regardless of the outcome. The Notice of Resolution shall be in writing and dated, and shall contain a brief description of that resolution, if any. It is anticipated that the Human Resources Review will normally be completed within 30 days but more time may be allowed if needed.
If you are not satisfied with the results of the Human Resources Review, as set forth in the Notice of Resolution, you may file a Request for Management Panel Review (Level 2). TCF encourages you to file a Request for Management Panel Review within thirty (30) days after the date of the Notice of Resolution, but this is a guideline, and shall not be applied to prevent the resolution of Covered Claims submitted within the applicable statute of limitations.
Except as otherwise specifically set forth in this DRP, all Covered Claims must be handled through Level 1 prior to submission to Level 2.
If a Covered Claim is not resolved in Human Resources Review (Level 1), you will have the opportunity to present the Covered Claim for Management Panel Review (Level 2). The Management Panel shall consist of three members: (1) a division executive (or his or her designee); (2) the state HR Director; and (3) the Corporate Director of HR. However, in any matter in which a panel member is your immediate manager or head of the TCF division in which you work, a replacement member will be appointed.
The Management Panel will hear and respond to your views of the Covered Claim. It will work with you, your immediate manager, and any other party involved in the Covered Claim, as it deems appropriate, in order to try to reach a resolution that is acceptable to all parties.
Upon completion of the Management Panel Review, the Management Panel will send you a Management Panel Review Determination, regardless of the outcome. The Management Panel Review Determination will be in writing and dated, and will contain a brief description of the resolution, if any. It is anticipated that the Management Panel Review will normally be completed within 30-45 days but more time may be allowed if needed.
Except as otherwise specifically set forth in this DRP, Levels 1 and 2 must be completed before a Covered Claim is submitted to Mediation (Level 3).
“Mediation” involves an attempt by you and TCF to resolve a Covered Claim with the aid of a neutral third party not employed by TCF (the “Mediator”). Mediation is non-binding, and the Mediator’s role is advisory. The Mediator normally gives each party an opportunity to explain the Covered Claim and submit information and arguments in support of that party’s positions. Then, the Mediator normally questions the parties and offers suggestions concerning how to resolve the dispute. However, ultimate resolution of the Covered Claim rests with the parties themselves. You, TCF or the Mediator may end a Mediation at any time. TCF will bear all Mediation costs, but you must pay your own costs for attorneys, experts and witnesses, except as otherwise required by law.
Unless you and TCF agree otherwise, the Mediator must have a minimum of three years’ experience in the practice of employment law, the mediation of employment law claims or comparable experience. A Mediator chosen by the parties must be immediately available to mediate the Covered Claim. In addition, the Mediator must have no financial interest in TCF or the outcome of the Mediation, or other potential conflict of interest with either you or TCF. You and TCF will attempt to agree on the Mediator. If you and TCF cannot agree within ten (10) days, TCF may appoint the Mediator, subject to your right to terminate the Mediation.
You or TCF may each be represented by counsel and you may have your spouse (or another relative) attend any Mediation hearing, provided that each person who is present at the Mediation must agree to abide by the same confidentiality provisions that bind the parties. If you do not have an attorney present at the Mediation (including a spouse or relative who is also an attorney), TCF will not have an attorney present. You must notify TCF fourteen (14) days prior to the Mediation if you will have an attorney present.
No person attending a Mediation may make a formal record or transcript or use any electronic recording device at the Mediation. However, you or TCF may each make handwritten notes during the Mediation.
At least seven (7) calendar days prior to the scheduled Mediation, each party shall provide the Mediator with a brief written summary of the Covered Claim, setting forth the party’s position concerning the Covered Claim and attaching any desired materials.
If a Covered Claim is not resolved in Levels 1-3, either you or TCF may elect to resolve the Covered Claim by final and binding Arbitration (Level 4). Each party will have an opportunity to present evidence to the arbitrator. However, pre-arbitration discovery (the process by which information is obtained from the other party) may be limited. Also, Arbitration proceedings are private and less formal than court trials and are not heard by judges or juries. The arbitrator will issue a final and binding decision resolving the dispute, which may be enforced as a court judgment. A court rarely overturns an arbitrator’s decision. With respect to Covered Claims subject to Arbitration under this DRP: (1) YOU AND TCF ARE WAIVING THE RIGHT TO HAVE A TRIAL BY JURY; AND (2) YOU AND TCF ARE WAIVING THE RIGHT TO HAVE A COURT RESOLVE THE CLAIM.
Either party may request Arbitration of a Covered Claim at any time before the applicable statute of limitations has expired, provided that Levels 1, 2 and 3 have been completed or properly bypassed. The request must be in writing and set forth the Covered Claim, including the alleged act(s) or omission(s) that give rise to the Covered Claim; the name, address and telephone number of the party requesting the Arbitration; and the names of all persons allegedly involved in the act(s) or omission(s).
If you request Arbitration, your request must identify the Dispute Resolution Service Provider you desire from the list below (under the caption “Dispute Resolution Service Provider”). If TCF requests Arbitration, you will have 15 days to select the Dispute Resolution Service Provider from the list below by giving TCF written notice of your selection. If you fail to do so, TCF will select the Dispute Resolution Service Provider from the list below.
To request Arbitration, you must give notice of your request to TCF’s General Counsel at 200 East Lake Street, Wayzata, MN 55391, with a copy to the HR Director/Manager for your state. To request Arbitration, TCF must give notice of its request to you at your address as set forth in TCF’s records. Any notices under this section must be sent by regular U.S. mail, certified U.S. mail – return receipt requested, or overnight delivery service, or the notice may be hand-delivered. If you want proof of receipt, TCF recommends that you send the notice by certified U.S. mail – return receipt requested or overnight delivery service, and upon request TCF will reimburse you for the cost of sending the notice by these methods. Notices may not be sent by facsimile machine or as an email attachment. TCF will initiate the Arbitration process within 30 days of receiving notice of your request for Arbitration or sending notice of a request for Arbitration to you.
The “Dispute Resolution Service Provider” or “DR Service Provider” shall be either of the following firms, selected in accordance with this DRP, or such other person or firm provided for under this DRP.
71 South Wacker Drive
Chicago, IL 60606
American Arbitration Association
1633 Broadway, 10th Floor
New York, New York 10019
Toll Free: 1-800-778-7879
990 Stewart Avenue, 1st Floor
Garden City, NY 11530
Any Arbitration under this DRP will be conducted under the rules (sometimes called “code of procedure”) of the DR Service Provider in effect at the time the Covered Claim is submitted to the DR Service Provider.
Strike one of the names if the list contains three proposed arbitrators, and then number the remaining names in order of preference; or
Strike two of the names if the list contains more than three proposed arbitrators, and then number the remaining names in order of preference.
The DR Service Provider must then select the arbitrator from among the names not struck and, when possible, based on the order of preference the parties have indicated. If a party does not return the list within the time specified, all proposed arbitrators on the list will be considered acceptable to that party. The procedure in this section does not waive a party’s right to object to the selected arbitrator under the arbitration organization’s rules.
If you file a Request for Arbitration, you will be responsible for half the fees of the DR Service Provider and arbitrator, to the extent permitted by law and the rules of the DR Service Provider, provided that TCF will consider your reasonable request to waive all or any portion of your Arbitration costs and will not ask you to pay any portion of such costs if prohibited by applicable law. TCF will pay all other fees charged by the DR Service Provider or the arbitrator. In any event, TCF will always pay such fees and other expenses if required by a court in order for this DRP to be enforced. Should TCF file a Request for Arbitration, it will pay all fees of the DR Service Provider and arbitrator. Although you are not required to hire a lawyer for Arbitration, you may have one if you choose. The parties will bear the fees and costs of their own counsel, experts and representatives, except to the extent applicable law provides otherwise. However, TCF will pay your reasonable counsel fees if you prevail in the arbitration. This includes any fees you incur for applying to the court to appoint a DR Service Provider under the caption “Initiating Arbitration” if you are required to file a separate lawsuit to obtain such an appointment.
TCF is engaged in transactions involving interstate commerce, and your employment involves such commerce. Accordingly, the Federal Arbitration Act shall govern this DRP, including any Arbitration under this DRP. The arbitrator is empowered and required to: (1) apply applicable substantive law consistent with the FAA, (2) apply the applicable statutes of limitation, (3) honor claims of privilege recognized by law, and (4) be subject to constitutional (including due process) constraints to the same extent as a judge acting in a judicial proceeding. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. In conducting an Arbitration proceeding, the arbitrator shall not be bound by any federal or state rules of civil procedure or evidence or by state arbitration laws. The arbitrator shall allow discovery to the extent permitted by the DR Service Provider’s rules and may allow further discovery for good cause.
WITH RESPECT TO COVERED CLAIMS SUBJECT TO ARBITRATION HEREUNDER: (1) YOU AND TCF ARE WAIVING THE RIGHT TO CONSOLIDATE ANY CLAIM WHICH YOU INDIVIDUALLY OR TCF MAY HAVE WITH THE CLAIM OF ANY OTHER PERSON AND THE INDIVIDUAL RIGHT TO PARTICIPATE AS A REPRESENTATIVE OF A CLASS, AS A PRIVATE ATTORNEY GENERAL, OR AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT OR ARBITRATION PROCEEDING; AND (2) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO HEAR OR DECIDE ANY SUCH CONSOLIDATED, CLASS OR PRIVATE ATTORNEY GENERAL CLAIM.The validity and effect of this Class Action Waiver shall be determined exclusively by a court and not an arbitrator.
If any portion of this DRP cannot be enforced, the rest of this DRP will continue to apply. However, if the Class Action Waiver (described under the caption “Class Action Waiver”) is invalidated with respect to any Covered Claim(s) for which you seek class-wide or multi-party relief in a proceeding in which you and we are involved, this entire DRP (except for this sentence) will be null and void with respect to such Covered Claim(s) in that proceeding only, subject to our right to appeal the invalidation of the Class Action Waiver. The DRP otherwise will continue to be fully in effect and enforceable with respect to all other Covered Claims for which class--wide or multi-party relief is not sought.
Notwithstanding any language in this DRP to the contrary, this DRP shall not preclude you or TCF from seeking emergency, temporary, preliminary or interim injunctive or other equitable relief with respect to any Covered Claims, including, without limitation, Non-Competition and Intellectual Property Claims, in court in accordance with applicable law. However, after the court has issued a ruling concerning such relief, and after all available avenues of appeal have been exhausted (if any have been invoked), you and TCF are required to submit the dispute to resolution pursuant to this DRP.
Before initiating Arbitration hereunder with respect to a Covered Claim raised in connection with any TCF Plan, you or TCF, as the case may be, shall first follow any claims procedures provided by such TCF Plan. After those claims procedures are finished, you or TCF may submit any remaining Covered Claim under this DRP.
You have the right to reject Arbitration, provided you do so within the time frames stated in this document. If you reject Arbitration within these time frames, neither you nor TCF are required to submit a Covered Claim to final and binding arbitration (Level 4). If you are a current TCF employee and you reject Arbitration, you may not reject or bypass Human Resources Review (Level 1) or Management Panel Review (Level 2), and neither you nor TCF may reject or bypass Mediation (Level 3), before submitting a Covered Claim for judicial resolution. If you are a former employee or an unsuccessful applicant for employment and you reject Arbitration, you or TCF may elect to bypass Human Resources Review or Management Panel Review, but neither you nor TCF may reject or bypass Mediation before submitting a Covered Claim for judicial resolution.
If you are a TCF Company employee on January 31, 2009, you must give the notice on or before April 1, 2009.
If your start date as a TCF Company employee is after January 31, 2009, you must give the notice no later than 60 calendar days after your start date.
If you applied for a job with TCF and were not hired, you must give the notice no later than 60 calendar days after the date you submitted your application to TCF (whether or not TCF has made a decision on your application within this time frame).
TCF Financial Corporation
Attn:Director of Corporate Human Resources
1405 Xenium Lane North
Mail Code: PCC-1A-H
Plymouth, Minnesota 55441
All TCF Management employees and other employees are strictly prohibited from retaliating against any Covered Individual for submitting a Covered Claim in good faith or for participating in this DRP as a party, witness or otherwise, or for exercising rights under Section 7 of the NLRA to engage in protected concerted activity. Any person having knowledge of such retaliation shall immediately notify their supervisor or HR.
The existence of a Covered Claim, and all proceedings under this DRP, including the hearing and recording of the proceeding, shall be confidential to the fullest extent permitted by law and shall not be open to the public, except: (i) to the extent both you and TCF agree otherwise in writing; (ii) as may be appropriate in any subsequent proceeding between you and TCF; or (iii) as may otherwise be appropriate in response to a request for information from a governmental agency or legal process. To the extent permitted by law, all settlement negotiations, mediations, arbitrations and the results thereof shall be confidential.
This DRP shall survive the termination of your employment with TCF (whether the termination is voluntary or involuntary). This DRP shall be for the benefit of your heirs and the representatives, executors and/or administrators of the Covered Individual’s estate, and such persons shall be bound by this DRP. This DRP shall also be for the benefit of TCF’s successors and assigns.
This DRP may be modified, in whole or in part, or may be terminated by TCF, if and only if TCF provides at least 30 days’ written notice of such modification or termination to you, and only with respect to Covered Claims submitted under this DRP which are asserted after the effective date of such modification or termination. However, TCF may immediately and/or retroactively modify this DRP to provide you with additional rights and/or waive any of its rights. Further, this DRP may be terminated as provided under the caption “Arbitration (Level 4).”The version of this DRP in effect at the time a Covered Claim is received or asserted by TCF will govern the process by which the Covered Claim is determined. However, if you are a job applicant who does not become a TCF employee, the version of this DRP in effect at the time of application for employment shall apply and, if you are no longer employed by TCF at the time a Covered Claim is asserted, the version of this DRP in effect at the date such employment terminated shall apply.
This DRP does not supersede or replace the TCF Code of Ethics or any TCF employment policies. You have a continuing responsibility to report violations of these policies to the appropriate management personnel, as identified in the policies, and to comply with your responsibilities and obligations under all other policies of TCF.
This DRP will be administered by HR, which will:
Coordinate the sending and receipt of written notices with you, your supervisors and HR representatives;
Answer questions about this DRP;
Assist in scheduling Management Review Panel meetings, Mediations and Arbitration hearings at Levels 2, 3, and 4; and
Function as TCF’s administrative liaison with the DR Service Provider.
Effective 2/1/2009 Revision 11/15/2013