Samantha Lichon v. Michael Morse ( 2021 )


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  •                                                                                    Michigan Supreme Court
    Lansing, Michigan
    Chief Justice:              Justices:
    Syllabus                                                      Bridget M. McCormack       Brian K. Zahra
    David F. Viviano
    Richard H. Bernstein
    Elizabeth T. Clement
    Megan K. Cavanagh
    Elizabeth M. Welch
    This syllabus constitutes no part of the opinion of the Court but has been               Reporter of Decisions:
    prepared by the Reporter of Decisions for the convenience of the reader.                 Kathryn L. Loomis
    LICHON v MORSE
    SMITS v MORSE
    Docket Nos. 159492 and 159493. Argued October 8, 2020 (Calendar No. 2). Decided
    July 20, 2021.
    In Docket No. 159492, Samantha Lichon brought an action in the Oakland Circuit Court
    against Michael Morse and Michael J. Morse, PC (the firm), alleging workplace sexual harassment
    in violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.; negligent and
    intentional infliction of emotional distress; negligence, gross negligence, and wanton and willful
    misconduct; and civil conspiracy. Lichon also alleged sexual assault against Morse. Lichon
    worked as a receptionist at the firm from September 2015 until her termination in April 2017.
    Lichon alleged that throughout her employment with the firm, she was sexually harassed by Morse
    and that she was sexually assaulted by Morse on multiple occasions. According to Lichon, Morse
    repeatedly groped her breasts without permission and touched her while making sexual comments.
    Although Lichon reported the incidents to the firm’s human resources department, no action was
    taken and Morse’s conduct continued. After she was terminated, Lichon was contacted by an
    attorney from the firm who pressured her not to file any action against Morse or the firm. Lichon
    filed her action in May 2017, and defendants moved to dismiss and compel arbitration on the basis
    that Lichon was required to arbitrate her claims pursuant to the firm’s Mandatory Dispute
    Resolution Procedure agreement (MDRPA), which she had signed upon being hired at the firm.
    The trial court, Shalina Kumar, J., granted defendants’ motion, finding that the arbitration
    agreement was valid and enforceable and that all of Lichon’s claims fell under the agreement.
    Lichon appealed in the Court of Appeals.
    In Docket No. 159493, Jordan Smits filed an action in the Wayne Circuit Court against the
    same defendants in May 2017, alleging workplace harassment in violation of the ELCRA;
    negligent and intentional infliction of emotional distress; and negligence, gross negligence, and
    wanton and willful misconduct. Smits later filed a second complaint against Morse individually,
    alleging sexual assault and battery, negligent and intentional infliction of emotional distress; and
    negligence, gross negligence, and willful and wanton misconduct. Smits was employed as a
    paralegal at the firm. In December 2015, she attended the firm’s Christmas party. At the party,
    according to Smits, Morse approached her from behind and grabbed her breasts. Smits reported
    the assault to human resources, but no action was taken. Smits later resigned and declined to
    accept two weeks’ severance pay in exchange for signing a nondisclosure agreement. Defendants
    moved to dismiss and compel arbitration, citing the MDRPA, which Smits had signed when she
    began working for the firm. The trial court, Daniel A. Hathaway, J., granted defendants’ motion,
    concluding that the arbitration agreement was valid and enforceable and that Smits’s claims were
    related to her employment and therefore subject to arbitration. Smits appealed in the Court of
    Appeals. The Court of Appeals, JANSEN, P.J., and BECKERING, J., (O’BRIEN, J., dissenting),
    consolidated all three cases and affirmed the trial court’s dismissal of Smits’s complaint against
    Morse individually but reversed the circuit court rulings in the other two cases. 
    327 Mich App 375
     (2019). The Court of Appeals majority concluded that plaintiffs’ claims of sexual assault were
    not subject to arbitration because sexual assault was not “related to” plaintiffs’ employment.
    Further, the Court of Appeals stated that the fact that the alleged assaults would not have occurred
    but for plaintiffs’ employment with the firm did not provide a sufficient nexus between the terms
    of the arbitration agreement and the alleged sexual assaults. The Supreme Court granted
    defendants’ application for leave to appeal. 
    504 Mich 962
     (2019).
    In an opinion by Justice CAVANAGH, joined by Chief Justice MCCORMACK and Justices
    BERNSTEIN and CLEMENT, the Supreme Court held:
    The threshold question of whether a dispute is subject to arbitration is for a court to
    determine. Michigan public policy generally favors arbitration, but arbitration is a matter of
    contract, and a party cannot be required to arbitrate an issue that the party did not agree to submit
    to arbitration. The MDRPA expressly limited its application to matters relative to employment.
    Therefore, whether the MDRPA prevented plaintiffs from litigating their claims against defendants
    depended on whether their claims were relative to their employment. Defendants noted certain
    facts that supported connections between plaintiffs’ claims and their employment, including that
    the alleged assaults occurred at work or work-related functions. But those facts did not necessarily
    make plaintiffs’ claims relative to employment; rather, the facts had to be evaluated under a
    standard that distinguished claims relative to employment from claims not relative to employment.
    Other jurisdictions evaluate motions to compel arbitration by asking whether the plaintiff’s claim
    can be maintained without reference to the contract or relationship at issue. This analysis prevents
    the absurdity of an arbitration clause that bars the parties from litigating any matter, regardless of
    how unrelated to the substance of the agreement, and it ensures that the mere existence of a contract
    does not mean that every dispute between the parties is arbitrable. Neither the circuit courts nor
    the Court of Appeals considered this standard when evaluating defendants’ motions to compel
    arbitration. Rather than apply this newly adopted approach in the first instance, the Michigan
    Supreme Court vacated the judgment of the Court of Appeals and remanded the cases to the circuit
    courts so that those courts could analyze defendants’ motions to compel arbitration by determining
    which of plaintiffs’ claims could be maintained without reference to the contract or employment
    relationship.
    Court of Appeals judgment vacated and cases remanded to the circuit courts.
    Justice VIVIANO, joined by Justice ZAHRA, dissenting, asserted that a proper interpretation
    of the language of the contract showed that plaintiffs’ claims against the firm were arbitrable and
    that their claims against Morse were arbitrable if he was able to invoke the arbitration clause,
    despite not being a signatory to the contract. The general scope of arbitrability was established in
    the contract: the agreement was to apply to “all concerns [employees] have over the Firm’s Policies
    and Procedures relative to . . . employment.” The agreement specifically included disputes over
    violations of state employment law, and both plaintiffs had alleged violations of the ELCRA,
    which prohibits sexual assaults that create a hostile work environment. Accordingly, plaintiffs’
    claims arising under the ELCRA were arbitrable under the agreement. Regarding plaintiffs’ other
    claims, under the agreement, any “concern” an employee had about how the firm’s policies were
    applied to him or her was arbitrable, and the agreement did not limit arbitration on the basis of the
    legal cause of action. Under the contract, a “concern” that was subject to arbitration was one that
    arose from how the firm’s policies and procedures were applied or interpreted relative to the
    plaintiff’s employment. This interpretation of the contract excluded only an employee’s concerns
    over the application of policies or procedures not related to that employee, such as concerns
    regarding their application to another employee. Given that the firm’s policies specifically
    proscribed sexual harassment and unwanted sexual contact, plaintiffs’ allegations involved
    concerns with how the firm’s policies were applied to them relative to their employment and were
    therefore arbitrable under the agreement. However, given that Morse did not sign the agreement
    in his individual capacity, Justice VIVIANO would have remanded the cases for a determination of
    whether Morse could compel arbitration as a nonsignatory to the contract.
    Justice WELCH did not participate in the disposition of this case because the Court
    considered it before she assumed office.
    Michigan Supreme Court
    Lansing, Michigan
    Chief Justice:                 Justices:
    OPINION                                   Bridget M. McCormack          Brian K. Zahra
    David F. Viviano
    Richard H. Bernstein
    Elizabeth T. Clement
    Megan K. Cavanagh
    Elizabeth M. Welch
    FILED July 20, 2021
    STATE OF MICHIGAN
    SUPREME COURT
    SAMANTHA LICHON,
    Plaintiff-Appellee,
    v                                               No. 159492
    MICHAEL MORSE and MICHAEL J.
    MORSE, PC,
    Defendants-Appellants.
    JORDAN SMITS,
    Plaintiff-Appellee,
    v                                               No. 159493
    MICHAEL MORSE and MICHAEL J.
    MORSE, PC,
    Defendants-Appellants.
    BEFORE THE ENTIRE BENCH (except WELCH, J.)
    CAVANAGH, J.
    In these cases, the Court must determine whether plaintiffs’ claims fall within the
    scope of arbitration agreements limited to matters that are “relative to” plaintiffs’
    employment. Whether plaintiffs’ allegations of sexual assault, and the multiple claims
    stemming from those allegations, are relative to plaintiffs’ employment is resolved by
    asking whether the claims can be maintained without reference to the contract or
    relationship at issue. Because the lower courts did not have the benefit of this framing, we
    vacate the decision of the Court of Appeals and remand these cases to the circuit courts for
    reconsideration of whether plaintiffs’ claims are subject to arbitration. Because plaintiffs
    also did not have the benefit of this framing when filing their claims, plaintiffs may seek
    to amend their complaints before the circuit courts make this determination.
    I. FACTS AND PROCEDURAL HISTORY
    Plaintiffs Samantha Lichon and Jordan Smits both worked for defendant Michael J.
    Morse, PC, doing business as the Mike Morse Law Firm (the Morse firm). Upon their hire,
    each plaintiff signed the Morse firm’s “Mandatory Dispute Resolution Procedure”
    agreement (MDRPA). Defendant Michael Morse was the sole shareholder of the firm and
    exercised significant control over its operations, serving as its president, secretary,
    treasurer, and director. Both plaintiffs sued Morse and the Morse firm, alleging that Morse
    sexually assaulted them.
    Lichon started working at the Morse firm as a receptionist in September 2015.
    Lichon alleges that “[t]hroughout the course of her employment,” she was “continuously
    and periodically sexually harassed” by Morse. Morse “sexually assaulted” her “when he
    2
    groped her breasts without invitation, permission, or inducement on multiple occasions.”
    Morse “touched his groin to her rear while audibly stating sexual comments, including but
    not limited to, ‘you make me so hard’ and ‘I want to take you into my office,’ ” on multiple
    occasions, without invitation, permission, or inducement. Lichon complained to her
    superiors at the Morse firm and to the human resources department, but no action was
    taken, and the sexual harassment and sexual assaults continued. On March 29, 2017,
    Lichon was placed on “Final Warning Status” for poor performance, and she was fired on
    April 7, 2017. On May 15, 2017, Lichon was contacted by Derek Brackon, an attorney at
    the Morse firm, who asked Lichon if she was going to sue Morse and “pressured and/or
    coerced and/or intimidated and/or attempted to persuade” her not to take any action against
    Morse or the Morse firm.
    Lichon filed suit against both defendants alleging workplace sexual harassment in
    violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.; negligent
    and intentional infliction of emotional distress; and negligence, gross negligence, and
    wanton and willful misconduct. She also alleged sexual assault against Morse. Lichon
    filed an amended complaint adding an allegation of civil conspiracy based on defendants’
    efforts to intimidate her to not file a lawsuit.
    In lieu of filing an answer, defendants moved to dismiss and compel arbitration
    under MCR 2.116(C)(7), arguing that the MDRPA required Lichon to arbitrate her claims.
    Lichon responded that the MDRPA’s scope was limited to matters which “arise out of her
    employment,” and because her claims were related to the sexual assault they did not “arise
    out of her employment” at the Morse firm. She also argued that the MDRPA was
    unenforceable as a matter of law because it is unconscionable, illusory, and contrary to
    3
    public policy. The trial court granted defendants’ motion, finding that the MDRPA was “a
    valid and enforceable arbitration agreement” and that Lichon’s claims were “inextricably
    intertwined and therefore all f[e]ll within the arbitration agreement and the workplace
    policies.” Lichon appealed in the Court of Appeals.
    Smits worked at the Morse firm as a paralegal, and in December 2015, she attended
    an office Christmas party. She alleged that Morse sexually assaulted her at the party.
    Morse approached her from behind and grabbed her breasts. She immediately grabbed his
    arms and yanked them away from her. Multiple guests witnessed the assault. When Smits
    reported the assault to the firm’s human resources department, the firm’s representative
    told Smits that the “number one priority [was] to protect Morse’s reputation.” When Smits
    expressed her concerns to an attorney employed at the Morse firm who witnessed the
    assault, he said, “[W]hat was I supposed to do, you know how Michael is.” Smits resigned
    by e-mail in February 2016. She was offered two weeks of severance pay if she would
    sign a nondisclosure agreement, but she declined. An employee of the Morse firm warned
    her to be careful because Morse “knows a lot of people in the legal community,” and he
    “could make it difficult for [Smits] to get a job.”
    Smits first filed suit on May 30, 2017. She alleged workplace sexual harassment in
    violation of the ELCRA; negligent and intentional infliction of emotional distress; and
    negligence, gross negligence, and wanton and willful misconduct against both defendants.
    Smits also alleged sexual assault against Morse. In lieu of an answer, defendants moved
    to dismiss and compel arbitration under MCR 2.116(C)(7). 1 Like Lichon, Smits argued
    1
    Defendants alternatively argued that Smits’s claims were barred by the statute of
    limitations. Smits signed an “Acknowledgement Form” in the Morse firm’s Employee
    4
    that her claims of sexual assault were not related to her employment, so they were not
    governed by the MDRPA. She also argued that the arbitration provision was unenforceable
    because it is procedurally and substantively unconscionable and illusory, that defendants
    forfeited enforcement of the MDRPA by failing to adhere to its process, and finally, that
    Morse could not invoke the MDRPA because he is not a party to the agreement. The trial
    court granted defendants’ motion, finding that the MDRPA is “a valid and enforceable
    agreement, supported by consideration and mutuality of obligation,” and that Smits’s
    claims were related to her employment and therefore subject to arbitration. Smits appealed
    in the Court of Appeals.
    On July 25, 2017, Smits filed a second complaint against only Morse, alleging
    sexual assault and battery; negligent and intentional infliction of emotional distress; and
    negligence, gross negligence, and willful and wanton misconduct. The trial court granted
    a motion to dismiss under MCR 2.116(C)(7), concluding that the action was precluded by
    res judicata and compulsory joinder. Smits appealed in the Court of Appeals.
    Before discussing the Court of Appeals’ analysis, it’s important to set out the
    relevant texts. The MDRPA signed by both plaintiffs states in pertinent part:
    This Mandatory Dispute Resolution Procedure shall apply to all concerns
    you have over the application or interpretation of the Firm’s Policies and
    Procedures relative to your employment, including, but not limited to, any
    Policy Manual, which states in relevant part:
    I agree that any claim or lawsuit relating to my employment with
    Michael J. Morse, P.C. must be filed no more than six (6) months after the
    date of employment action that is the subject of the claim or lawsuit unless a
    shorter period is provided by law. I waive any statute of limitations to the
    contrary.
    5
    disagreements regarding discipline, termination, discrimination or violation
    of other state or federal employment or labor laws. This includes any claim
    over the denial of hire. This Procedure includes any claim against another
    employee of the Firm for violation of the Firm’s Policies, discriminatory
    conduct or violation of other state or federal employment or labor laws.
    Similarly, should the Firm have any claims against you arising out of the
    employment relationship, the Firm also agrees to submit them to final and
    binding arbitration pursuant to this Procedure.
    * * *
    The only exceptions to the scope of this Mandatory Dispute
    Resolution Procedure shall be for questions that may arise under the Firm’s
    insurance or benefit programs (such as retirement, medical insurance, group
    life insurance, short-term or long-term disability or other similar programs).
    These programs are administered separately and may contain their own
    separate appeal procedures. In addition, this Procedure does not apply to
    claims for unemployment compensation, workers’ compensation or claims
    protected by the National Labor Relations Act. While this Procedure does
    not prohibit the right of an employee to file a charge with the Equal
    Employment Opportunity Commission (“EEOC”) or a state civil rights
    agency, it would apply to any claims for damages you might claim under
    federal or state civil rights laws. In addition, either Party shall have the right
    to seek equitable relief in a court of law pending the outcome of the
    arbitration proceeding.
    The Court of Appeals summarized the process required by the MDRPA:
    [F]irst, within one year an employee must file with a direct supervisor a
    “request for review of your concern stating your disagreement or concern
    and the action you request the Firm to take.” The supervisor will date the
    request, provide the employee with a copy, and then “generally schedule a
    meeting with [the employee] to hear [the employee’s] concerns and will
    provide [the employee] with a written decision within” 15 business days.
    Second, if the dispute is not resolved to the employee’s satisfaction, a written
    request for review must be filed directly with Morse within 15 days. Morse,
    or his “designated representative,” will issue a written decision within 15
    days. If the employee is still not satisfied, the final recourse is to submit a
    written request for arbitration to the firm within 15 days, and the employee
    “must deposit with the Firm $500.00 or Five (5) Days’ pay, whichever is
    less.” [Lichon v Morse, 
    327 Mich App 375
    , 382-383; 933 NW2d 506 (2019)
    (emphasis omitted).]
    6
    Smits also signed an “Agreement for At-Will Employment and Agreement for Resolution
    of Disputes,” which provided in relevant part:
    IV. ARBITRATION OF DISPUTES:
    As a condition of my employment, I agree that any dispute or concern
    relating to my employment or termination of employment, including but not
    limited to claims arising under state or federal civil rights statutes, must be
    resolved pursuant to the Firm’s [MDRPA] which culminates in final and
    binding arbitration. I have been provided with a copy of the Firm’s
    [MDRPA] and agree to be bound by this Dispute Procedure.
    The Morse firm’s employee manual has an “Anti-Discrimination, Harassment,
    and Retaliation Policy,” which defines sexual harassment broadly and purports to include
    physical harassment that creates a hostile or offensive work environment within that
    definition. The manual provides that “[t]his policy covers all employees.” The policy
    specifically states as follows:
    Anti-Discrimination, Harassment, and Retaliation Policy
    Sexual harassment, whether verbal, written, physical or
    environmental, is unacceptable and will not be tolerated. Sexual harassment
    is defined as unwelcome or unwanted conduct of a sexual nature (verbal,
    written, physical or environment[al]) when:
    1.    Submission to or rejection of this conduct is used as a factor in
    decisions affecting hiring, evaluation, promotion or other aspects of
    employment; and/or
    2.    Conduct substantially interferes with an individual’s
    employment or creates an intimidating, hostile or offensive work
    environment.
    The Court of Appeals consolidated all three cases and affirmed the trial court with
    regard to Smits’s complaint against Morse individually, but reversed the trial court
    decisions in the other two cases in a published, split decision. Lichon, 327 Mich App at
    7
    379-380. The majority noted that the parties had agreed as to the existence of the MDRPA
    and its terms but disagreed as to whether sexual assault by a supervisor or employer was
    covered. So, the majority reasoned, this was the “sole issue” to be decided on appeal. The
    majority then held that sexual assault was not “related to” employment:
    Despite the fact that the sexual assaults may not have happened but
    for plaintiffs’ employment with the Morse firm, we conclude that claims of
    sexual assault cannot be related to employment. The fact that the sexual
    assaults would not have occurred but for Lichon’s and Smits’s employment
    with the Morse firm does not provide a sufficient nexus between the terms
    of the MDRPA and the sexual assaults allegedly perpetrated by Morse. To
    be clear, Lichon’s and Smits’s claims of sexual assault are unrelated to their
    positions as, respectively, a receptionist and paralegal. Furthermore, under
    no circumstances could sexual assault be a foreseeable consequence of
    employment in a law firm. Accordingly, the circuit courts erroneously
    granted defendants’ motions to dismiss these actions and compel arbitration
    of plaintiffs’ claims. Both Lichon and Smits shall be permitted to litigate
    their claims in the courts of this state because the claims fall outside the
    purview of the MDRPA. [Id. at 393-394.]
    The majority agreed with plaintiffs that because sexual assault at the hands of an employer
    or supervisor cannot be related to employment and because the MDRPA limits the scope
    of arbitration to claims that are “related to” employment, the MDRPA is inapplicable. The
    majority did not reach plaintiffs’ argument that the MDRPA is unconscionable or illusory
    or their argument that Morse could not enforce the MDRPA as a nonsignatory.
    The Court of Appeals dissent reasoned that plaintiffs’ claims “arguably” fell within
    the language of the MDRPA. Id. at 400 (O’BRIEN J., dissenting). The dissent agreed that
    sexual assault is not related to employment, but thought the dispositive question was
    broader. Rather than focusing on the language of the MDRPA limiting its scope to matters
    “relative to your employment,” the dissent looked to other language in the agreement
    stating that the parties agreed to arbitrate “ ‘any claim against another employee of the Firm
    8
    for violation of the Firm’s Policies, discriminatory conduct or violation of other state or
    federal employment or labor laws.’ ” Id. at 403. Thus, the dissent concluded, plaintiffs
    had “agreed to arbitrate ‘any claim against another employee of the Firm
    for . . . discriminatory conduct.’ ” Id.
    Defendants sought leave to appeal here, and we granted leave to appeal, ordering
    the parties to address generally whether the claims set forth in the plaintiffs’ complaints
    are subject to arbitration. Lichon v Morse, 
    504 Mich 962
     (2019).
    II. STANDARD OF REVIEW
    This Court reviews de novo circuit court decisions on motions for summary
    disposition brought under MCR 2.116(C)(7). Altobelli v Hartmann, 
    499 Mich 284
    , 294-
    295; 884 NW2d 537 (2016). Under MCR 2.116(C)(7), summary disposition is appropriate
    when claims are subject to “an agreement to arbitrate or to litigate in a different forum.”
    “Whether a particular issue is subject to arbitration is also reviewed de novo, as is the
    interpretation of contractual language.” Id. at 295 (citations omitted).
    III. ANALYSIS
    The Court of Appeals majority’s analysis started from the proposition that “[t]he
    sole issue for us to decide is whether the MDRPA encompasses the subject matter of the
    dispute at issue in this case.” Lichon, 327 Mich App at 392 (quotation marks and citation
    omitted).     The MDRPA expressly limits its application to matters “relative
    to . . . employment.” So, whether the MDRPA encompasses the subject matter of the
    dispute turns on whether the claims are relative to employment. The MDRPA is not alone
    in limiting its scope to matters which are “relative to employment” or “related to
    9
    employment,” and other courts have put considerable thought into whether various claims
    are relative to employment. Generally, we think this question can be resolved by asking
    whether the claim can be maintained without implicating the employment relationship.
    A. PRINCIPLES OF CONTRACTUAL INTERPRETATION
    Because “[a]rbitration is a matter of contract,” Kaleva-Norman-Dickson Sch Dist
    No. 6 v Kaleva-Norman-Dickson Sch Teachers’ Assoc, 
    393 Mich 583
    , 587; 227 NW2d 500
    (1975), “when interpreting an arbitration agreement, we apply the same legal principles
    that govern contract interpretation,” Altobelli, 499 Mich at 295. Our goal in interpreting a
    contract is to “ascertain the intent of the parties at the time they entered into the agreement.”
    Id.
    Here, the question is whether plaintiffs’ claims are governed by the MDRPA. This
    threshold question of whether a dispute is subject to arbitration is for a court to determine.
    Kaleva, 
    393 Mich at 591
    . As we have said, “[a] party cannot be required to arbitrate an
    issue which [it] has not agreed to submit to arbitration.” 
    Id. at 587
    .
    As a general matter, Michigan’s public policy favors arbitration. Altobelli, 499
    Mich at 295. But this general position favoring arbitration does not go so far as to override
    foundational principles of contractual interpretation. In Kaleva, in the context of collective
    bargaining agreements, we held that it was appropriate to apply United States Supreme
    Court precedent regarding the National Labor Relations Act (NLRA), 29 USC 151 et seq.,
    to contracts entered into under the state’s public employment relations act (PERA), MCL
    423.201 et seq. Kaleva, 
    393 Mich at 590-591
    . That holding seems to have expanded in
    application in the lower courts beyond collective bargaining agreements to a more general
    10
    rule that parties are bound to arbitration if the disputed issue is “arguably” within the
    arbitration clause. See, e.g., Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 
    276 Mich App 146
    , 163; 742 NW2d 409 (2007); Fromm v MEEMIC Ins Co, 
    264 Mich App 302
    , 305-
    306; 690 NW2d 528 (2004). This is not a rule we have adopted outside of the context of
    collective bargaining agreements, and we decline to do so now. Our general practice of
    looking to federal precedent discussing the NLRA to interpret the PERA is simply
    inapplicable here because the PERA is not at issue. In no way does this signal a judicial
    hostility to arbitration; rather, we simply recognize that agreements to arbitrate should be
    read like any other contract. Altobelli, 499 Mich at 295.
    B. WHETHER THESE CLAIMS ARE COVERED BY THE MDRPA
    To answer whether the MDRPA governs plaintiffs’ claims in these cases, we look
    first to the words of the agreement. The MDRPA applies to “all concerns you have over
    the application or interpretation of the Firm’s Policies and Procedures relative to your
    employment.” Thus, the MDRPA limits its scope from the outset to matters “relative
    to . . . employment.” 2
    2
    The dissent asserts that our analysis fails to give consideration to the complete sentence—
    i.e., that we have “lop[ped] off” the first part of the phrase, “all concerns you have over the
    application or interpretation of the Firm’s Policies and Procedures,” in order to “isolate the
    second half, ‘relative to your employment.’ ” We disagree. Our analysis gives effect to
    every part of the sentence. Under the MDRPA, plaintiffs must have “concerns;” they
    indisputably do. Those concerns must be over the application or interpretation of the Morse
    firm’s policies and procedures; plaintiffs’ concerns meet this requirement because, as the
    dissent points out, the firm’s policies and procedures proscribe unwanted sexual contact,
    harassment, and abuse. Next, those concerns must be “relative to . . . employment.” This
    is the disputed issue. To be arbitrable, the concerns must both involve the application or
    interpretation of the Morse firm’s policies and procedures and be relative to employment.
    Either fact, standing alone, is insufficient. It is the dissent that “lops off” the phrase
    11
    Defendants accurately recite facts supporting connections between plaintiffs’ claims
    and their employment. For example, the alleged assaults took place at work or at work-
    related functions, and Morse held a position of power over the plaintiffs. But not every
    factual connection between a plaintiff’s claim and her job makes the claim relative to or
    related to employment—those facts need to be evaluated under a standard that
    distinguishes claims “relative to” employment from claims not “relative to” employment.
    As the United States Court of Appeals for the Eleventh Circuit observed, in evaluating
    what it means for a claim to be “related to” employment:
    “[R]elated to” marks a boundary by indicating some direct relationship;
    otherwise, the term would stretch to the horizon and beyond. As the Supreme
    Court has explained in the [Employment Retirement Income Security Act,
    29 USC 1001 et seq.,] pre-emption context, “related to” is limiting language
    and “[i]f ‘relate to’ were taken to extend to the furthest stretch of its
    indeterminacy,” it would have no limiting purpose because “really,
    universally, relations stop nowhere.” NY State Conference of Blue Cross &
    Blue Shield Plans v Travelers Ins Co, 
    514 US 645
    , 655; 
    115 S Ct 1671
    , 1677;
    
    131 L Ed 2d 695
     (1995) (quotation marks omitted). [Doe v Princess Cruise
    Lines, Ltd, 657 F3d 1204, 1218-1219 (CA 11, 2011).]
    The same principle applies here. If litigating parties have an employment or other
    contractual relationship, one party will likely be able to find some factual connection,
    however remote, between their dispute and the relationship. But we require more than the
    “relative to . . . employment,” choosing instead to read the limitation as only excluding “an
    employee’s concerns about how the policies or procedures were interpreted or applied to
    another employee or how they were interpreted or applied in general, unrelated to any
    particular employee.” Perhaps if the modifying phrase was “relative to you,” rather than
    “relative to your employment,” this would be a reasonable interpretation. Still, it would be
    an odd construction given that it is unclear how one employee might seek to arbitrate the
    concerns of another employee, or to arbitrate the meaning of the firm’s policies in the
    abstract. But this is not the phrase we are asked to interpret.
    12
    barest factual connection for a claim to be relative to employment or another pertinent
    contractual relationship.
    In determining whether a claim is relative to employment, we adopt the approach of
    a number of other jurisdictions that “ask if [the] action could be maintained without
    reference to the contract or relationship at issue.” Academy of Med of Cincinnati v Aetna
    Health, Inc, 108 Ohio St 3d 185, 186; 
    842 NE2d 488
     (Ohio 2006), citing Fazio v Lehman
    Bros, Inc, 340 F3d 386 (CA 6, 2003). Accord Jones v Halliburton, 583 F3d 228 (CA 5,
    2009); Doe, 657 F3d at 1219-1220; United States v My Left Foot Children’s Therapy, LLC,
    871 F3d 791, 799 (CA 9, 2017). This analysis “functions as a tool to determine a key
    question of arbitrability—whether the parties agreed to arbitrate the question at issue.”
    Academy of Med of Cincinnati, 108 Ohio St 3d at 191. Such an analysis “prevents the
    absurdity of an arbitration clause barring a party to the agreement from litigating any matter
    against the other party, regardless of how unrelated to the subject of the agreement,” and
    ensures that the mere “existence of a contract between the parties does not mean that every
    dispute between the parties is arbitrable.” 
    Id.
     3
    The Eleventh Circuit applied this test in Doe. In that case, the plaintiff worked on
    a cruise ship as a bar server. Doe, 657 F3d at 1208. Her employment agreement contained
    an arbitration provision. Id. at 1214-1215. It stated, in part, that she agreed to arbitrate
    3
    We agree with the dissent that “ ‘[r]elative’ means ‘a thing having a relation to or
    connection with or necessary dependence on another thing.’ ” (Citation omitted.)
    However, that circular observation is not very helpful given that “really, universally,
    relations stop nowhere.” NY State Conference of Blue Cross & Blue Shield Plans, 
    514 US at 655
     (quotation marks and citation omitted). We disagree with the dissent that its reading
    of the phrase is “more concrete.”
    13
    “ ‘any and all disputes . . . [or] claims . . . relating to or in any way arising out of or
    connected with the Crew Agreement.’ ” 
    Id.
     (emphasis omitted). A “dispute” arose when
    the plaintiff was drugged and raped by coworkers. Id. at 1209. When she reported the rape
    to her supervisors, they didn’t let her seek medical treatment and forced her to continue
    working and to submit to repeated questioning. Id. at 1209-1210. She was eventually
    provided some treatment on the ship, but she was not permitted to leave the ship to seek
    further necessary treatment until three weeks after the assault. Id. Ultimately, the
    plaintiff’s blood and rape kit samples as well as her medical records were incinerated. Id.
    at 1210.
    The plaintiff sued Princess Cruise Lines, asserting ten claims. The first five claims
    arose from her status as a “seaman,” 4 while the other claims were common-law tort claims. 5
    4
    These claims were:
    (1) a “Jones Act negligence” claim, alleging that Princess Cruise Lines
    breached its “duty to provide a safe place to work such that [Doe] could
    perform the job obligations in a reasonably safe manner and live aboard the
    vessel free from sexual violence and/or sexual harassment”; (2) an
    unseaworthiness claim, alleging that the cruise line breached its “non-
    delegable duty to provide [Doe] with a seaworthy vessel upon which to work
    and live free from sexual battery and/or sexual harassment”; (3) a Jones Act
    claim, alleging that the cruise line breached its duty under that act to provide
    Doe with prompt, adequate, and complete medical treatment for “injuries
    sustained while in the service of the vessel”; (4) a maintenance and cure
    claim, alleging that the cruise line “purposefully refused to arrange for and
    pay [for] timely and complete medical cure” despite its obligation to do so
    under “the General Maritime Law”; and (5) a Seaman’s Wage Act claim that
    the cruise line breached its “duty to timely pay all of [Doe’s] wages as a
    seaman.” [Doe, 657 F3d at 1211-1212 (alterations in original).]
    5
    These claims were:
    14
    The defendant sought to compel arbitration on the entire complaint, and the district court
    denied the motion in its entirety. Id. at 1212. The defendant appealed, arguing that all the
    claims arose out of or were connected to the plaintiff’s employment and, as a result, were
    subject to arbitration. Id. at 1213. The appellate court held that some of the claims were
    subject to arbitration, and some were not. Id. at 1219.
    The court concluded that the five common-law tort claims were not subject to
    arbitration because they did not depend on the employment relationship. Id. Those claims
    were based on allegations that, inter alia, the officers of the cruise ship had not allowed the
    plaintiff to go ashore for medical treatment, the evidence of the rape had been destroyed,
    and, of course, that the plaintiff was drugged and raped. Id. The court noted that none of
    those allegations had anything to do with the plaintiff’s employment agreement or her work
    duties. Id. Further, “[t]he cruise line could have engaged in that tortious conduct even in
    the absence of any contractual or employment relationship with [the plaintiff],” so those
    (6) a false imprisonment claim, alleging that the cruise line had “purposefully
    and intentionally restrained [Doe] against her will on the cruise ship and did
    not permit her to leave the cruise ship to go ashore for medical treatment” in
    Seattle; (7) an intentional infliction of emotional distress claim, alleging
    “separate and independent torts committed by” the cruise line, its agents, and
    its employees related to Doe’s rape and the way that they handled the
    situation and treated her after learning of the rape; (8) a spoliation of evidence
    claim, alleging that the cruise line breached its duty to preserve evidence after
    one of its crew members sexually assaulted and battered Doe; (9) an invasion
    of privacy claim, alleging that the cruise line, th[r]ough its agents, breached
    its duty to protect Doe’s confidentiality and privacy as a rape victim by
    repeatedly disclosing her real name in an effort to intimidate and embarrass
    her; and (10) a fraudulent misrepresentation claim, alleging that officers of
    the cruise line who were on the ship repeatedly and falsely told Doe after she
    had been drugged and raped that she could not disembark the ship to get
    medical treatment and counseling by doctors of her own choosing. [Id. at
    1212 (first alteration in original).]
    15
    claims were not “an immediate, foreseeable result of the performance of the parties’
    contractual duties.” Id. (quotation marks and citation omitted). The fact that the plaintiff
    would likely not have been on the ship but for her employment did not mean that all her
    claims arose from her employment. Id. The court illustrated the point by noting that if a
    passenger on the ship had been subjected to the same treatment as the plaintiff, he or she
    could have brought the same claims. Id. at 1220.
    By contrast, the court concluded that the plaintiff’s other claims were subject to
    arbitration because they depended on the employment relationship. Two of those claims
    were based specifically on the Jones Act, 46 USC 30104, and alleged that the defendant
    had breached statutory duties owed to the plaintiff. Id. But the defendant owed those
    duties to the plaintiff only because of her status as a seaman. Id. Another claim subject to
    arbitration was based on an assertion of “unseaworthiness,” which also depended on the
    plaintiff’s status as a seaman.    Id.   A fourth claim subject to arbitration asked for
    “maintenance and cure,” which is a maritime law remedy available to seamen. Id. at 1221.
    The final claim subject to arbitration was brought under the Seaman’s Wage Act, 46 USC
    10313, and also depended on the plaintiff’s status as a seaman. Id. None of these claims
    could have been brought if not for the employment relationship. Id. at 1220-1221.
    Like the plaintiff in Doe, plaintiffs here have brought several claims. Whether the
    claims are subject to arbitration depends on whether they are covered by the MDRPA,
    which, in turn, depends on whether the claims are relative to plaintiffs’ employment. We
    hold that a court answers that question by considering whether the claims could be
    maintained without reference to the contract or relationship at issue. To borrow the
    illustration from Doe, if Morse had groped or propositioned opposing counsel or a client
    16
    while at the Morse firm’s office, or if Morse had grabbed the breasts of a server or other
    patron of the restaurant during the firm’s Christmas party, could those individuals bring
    the same claims as plaintiffs?
    Neither the Court of Appeals nor the circuit courts considered this standard when
    evaluating defendants’ motions to compel arbitration. Rather than apply this standard in
    the first instance, we vacate the decision of the Court of Appeals and remand these matters
    to the circuit courts. Further, just as the lower courts did not have the benefit of this framing
    when evaluating defendants’ motions, neither did plaintiffs have the benefit of this framing
    when formulating their complaints. In this regard, we remind the circuit courts that, under
    MCR 2.118(A)(2), “[l]eave [to amend pleadings] shall be freely given when justice so
    requires.”
    Defendants argue that the claims do not need to be relative to employment to be
    covered by the MDRPA, because they are otherwise expressly covered by the MDRPA
    given that it applies to “any claim against another employee of the Firm for violation of the
    Firm’s Policies” and because the firm’s policies prohibit sexual harassment, including
    physical contact. The dissent also focuses on this language. As a textual matter, we do not
    read the language relied on by the dissent and defendants as additional words of inclusion
    covering matters beyond those relative to employment. Rather, this language merely
    specifies some matters relative to employment which are included. The paragraph reads,
    in full:
    This Mandatory Dispute Resolution Procedure shall apply to all
    concerns you have over the application or interpretation of the Firm’s
    Policies and Procedures relative to your employment, including, but not
    limited to, any disagreements regarding discipline, termination,
    discrimination or violation of other state or federal employment or labor
    17
    laws. This includes any claim over the denial of hire. This Procedure
    includes any claim against another employee of the Firm for violation of the
    Firm’s Policies, discriminatory conduct or violation of other state or federal
    employment or labor laws. Similarly, should the Firm have any claims
    against you arising out of the employment relationship, the Firm also agrees
    to submit them to final and binding arbitration pursuant to this Procedure.
    The first sentence clearly limits the scope of the MDRPA to matters “relative
    to . . . employment.” The next two sentences begin, “[t]his includes” and “[t]his Procedure
    includes.” But the procedure is limited to matters “relative to . . . employment.” These
    sentences specify some matters “relative to employment” that are covered. Finally, the
    Morse firm’s reciprocal obligation in the last sentence contains the same limitation,
    defining the firm’s obligation to arbitrate as limited to claims “arising out of the
    employment relationship . . . .” Read in context, the MDRPA clearly limits its scope to
    matters relative to employment. 6
    In light of this resolution, we do not reach plaintiffs’ argument that the MDRPA is
    unconscionable or illusory, nor do we address plaintiffs’ argument that Morse could not
    enforce the MDRPA because he did not sign it. The circuit court in Smits’s case had
    6
    The argument advanced by defendants and the dissent in this regard also wades into the
    territory of “the absurdity of an arbitration clause barring a party to the agreement from
    litigating any matter against the other party, regardless of how unrelated to the subject of
    the agreement.” Academy of Med of Cincinnati, 108 Ohio St 3d at 191. Taking this
    argument to its logical conclusion, plaintiffs would be bound to arbitrate any sexual assault
    Morse might inflict on them because sexual assault is prohibited by the firm’s policies.
    One wonders, under this interpretation, could defendants compel arbitration of any claim
    merely by proscribing such conduct in its policy manual? Could a plaintiff be compelled
    to arbitrate a wrongful death claim merely because defendants’ policy manual stated, “We
    do not tolerate intentional or negligent killing at the Firm”? Though we do not reach
    plaintiffs’ argument that the MDRPA is unconscionable, plaintiffs would seem to be in a
    much stronger position with regard to that argument if their employment agreement bound
    them to arbitrate concerns unrelated to their employment.
    18
    considered whether her claims were barred by the contractual-limitations period in the
    employee manual.         Like the MDRPA, that period applies only to matters “relating
    to . . . employment,” so its scope is similarly limited. Therefore, on remand, the circuit
    court should consider whether the contractual-limitations period applies only to claims
    arbitrable under the MDRPA.
    IV. CONCLUSION
    We vacate the judgment of the Court of Appeals and remand these cases to their
    respective circuit courts where the courts may analyze defendants’ motions to compel
    arbitration by analyzing which of plaintiffs’ claims can be maintained without reference to
    the contract or relationship at issue. Plaintiffs may seek to amend their complaints in light
    of this new direction.
    Megan K. Cavanagh
    Bridget M. McCormack
    Richard H. Bernstein
    Elizabeth T. Clement
    19
    STATE OF MICHIGAN
    SUPREME COURT
    SAMANTHA LICHON,
    Plaintiff-Appellee,
    v                                                    No. 159492
    MICHAEL MORSE and MICHAEL J.
    MORSE, PC,
    Defendants-Appellants.
    JORDAN SMITS,
    Plaintiff-Appellee,
    v                                                    No. 159493
    MICHAEL MORSE and MICHAEL J.
    MORSE, PC,
    Defendants-Appellants.
    VIVIANO, J. (dissenting).
    The task before the Court in these cases is a common one. We must interpret
    contractual language to determine the parties’ intent; specifically, we must determine
    whether the parties meant to assign plaintiffs’ present claims to arbitration. Instead of
    examining the relevant text and context, the majority plucks a standard from out-of-state
    caselaw and imposes it upon the parties here. A proper interpretation of the contract’s
    language shows that plaintiffs’ claims against defendant Michael J. Morse, PC, doing
    business as the Mike Morse Law Firm (the Firm) are arbitrable under the contract. I would
    therefore reverse the Court of Appeals’ decision to the contrary. The claims against
    defendant Michael Morse individually are also arbitrable under the contract if he can
    invoke the arbitration clause. Because the Court of Appeals below did not determine
    whether Morse has the authority to enforce the agreement, which he did not sign, I would
    remand on that issue.
    Arbitration agreements are contracts, and so “when interpreting an arbitration
    agreement, we apply the same legal principles that govern contract interpretation.”
    Altobelli v Hartmann, 
    499 Mich 284
    , 295; 884 NW2d 537 (2016). Accordingly, the
    Court’s “task is to ascertain the intent of the parties at the time they entered into the
    agreement, which [is] determine[d] by examining the language of the agreement according
    to its plain and ordinary meaning.” 
    Id.
     This requires reading individual clauses in light of
    the contract as a whole, “since a contract should be construed so as to give full meaning
    and effect to all its provisions.” 21 Williston, Contracts (4th ed), § 57:20, p 220. Although
    we have indicated that public policy supports arbitration, the contract here is clear and
    therefore any policy favoring arbitration does not inform my interpretation. See Altobelli,
    499 Mich at 295. 1
    1
    I agree with the majority to the extent it limits the application of the principle that a party
    is bound to arbitration if the dispute is “arguably” within the arbitration clause. See
    Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 
    276 Mich App 146
    , 163; 742 NW2d
    409 (2007). The policy in support of arbitration flows from statutes permitting parties to
    arbitrate. See Detroit v AW Kutsche & Co, 
    309 Mich 700
    , 703; 16 NW2d 128 (1944). But
    such legislation simply compels courts to “place arbitration agreements on an equal footing
    with other contracts . . . and enforce them according to their terms.” AT&T Mobility LLC
    v Concepcion, 
    563 US 333
    , 339; 
    131 S Ct 1740
    ; 
    179 L Ed 2d 742
     (2011). Consequently,
    2
    While the majority frames the question of arbitration as depending on whether the
    plaintiffs’ claims are “related to employment,” that is not how the contract puts it:
    This Mandatory Dispute Resolution Procedure shall apply to all
    concerns you have over the application or interpretation of the Firm’s
    Policies and Procedures relative to your employment, including, but not
    limited to, any disagreements regarding discipline, termination,
    discrimination or violation of other state or federal employment or labor
    laws. This includes any claim over the denial of hire. This Procedure
    includes any claim against another employee of the Firm for violation of the
    Firm’s Policies, discriminatory conduct or violation of other state or federal
    employment or labor laws. Similarly, should the Firm have any claims
    against you arising out of the employment relationship, the Firm also agrees
    to submit them to final and binding arbitration pursuant to this Procedure.
    [Emphasis added.][2]
    The general scope of arbitrability is established at the outset: the arbitration agreement
    “shall apply to all concerns you have over . . . the Firm’s Policies and Procedures relative
    to your employment . . . .” Following this are specific examples of arbitrable disputes
    falling within the agreement as well as the Firm’s commitment to arbitrate “any claims”
    against its employees “arising out of the employment relationship . . . .”
    The issue is whether this language covers plaintiffs’ present claims, making them
    arbitrable. As an initial matter, the agreement specifically includes “disagreements”
    regarding the violation of state employment laws. Both plaintiffs here have alleged
    violations of the Elliott-Larsen Civil Rights Act, MCL 37.2101 to MCL 37.2804. We have
    interpreted that statute to prohibit sexual assaults that create a hostile work environment.
    this pro-arbitration policy should not mislead courts into distorting a contract’s ordinary
    meaning in an effort to render it applicable to the dispute at issue.
    2
    A second paragraph in the agreement details specific exclusions to arbitration that are not
    at issue here.
    3
    See Radtke v Everett, 
    442 Mich 368
    , 394-395; 501 NW2d 155 (1993). Plaintiffs here have
    alleged that they were sexually assaulted in a manner that affected their work. Those
    claims, therefore, fit within the arbitration agreement.
    To be arbitrable, the rest of the claims—all based on the common law—would need
    to involve “concerns . . . over the application or interpretation of the Firm’s Policies and
    Procedures relative to your employment.” 3 In other words, if an employee has a “concern”
    about how the Firm’s policies were applied to him or her, that concern goes to arbitration.
    A “concern” is relevantly defined as a “matter for consideration.” Merriam-Webster.com
    Dictionary, Concern  (accessed
    April 22, 2021) [https://perma.cc/2J7R-77US]. As used in the agreement, “concerns”
    encompasses various “claims,” such as those arising from “the denial of hire” or those
    lodged against another employee. But nothing limits the key sentence here—regarding
    concerns about the policies and procedures—to any particular type of legal cause of action,
    such that a tort claim for sexual assault or intentional infliction of emotional distress would
    be excluded from the agreement. If the claim involves the “concern,” it must be arbitrated.
    This conclusion flows from the language of the contract and also is consistent with the
    view of other courts that determining whether a claim is arbitrable depends on the
    underlying facts rather than the particular legal cause presented. See, e.g., Gregory v
    Electro-Mechanical Corp, 83 F3d 382, 384 (CA 11, 1996) (“Whether a claim falls within
    3
    Against both defendants, plaintiffs assert claims of negligent and intentional infliction of
    emotional distress and negligence, gross negligence, and wanton and willful misconduct.
    Against Morse, in his individual capacity, plaintiffs also assert a claim of sexual assault.
    4
    the scope of an arbitration agreement turns on the factual allegations in the complaint rather
    than the legal causes of action asserted.”). 4
    Next, the “concerns” must involve the “application or interpretation of the Firm’s
    Policies and Procedures relative to your employment.” The majority lops off the critical
    first part of this phrase so that it can isolate the second half, “relative to your employment.”
    And in analyzing the latter phrase, the majority makes no pretense of applying normal
    interpretive methods but instead reaches for out-of-state caselaw that similarly fails to offer
    much in the way of textual interpretation. 5 Even so, the majority may have come close to
    4
    See also Doe v Hallmark Partners, LP, 227 So 3d 1052, 1056 (Miss, 2017) (“To answer
    whether [the plaintiff] agreed to arbitrate her assault- and rape-based tort claims, this Court
    must ‘focus on factual allegations in the complaint rather than the legal causes of action
    asserted.’ ”) (citation omitted); 21 Williston, Contracts (4th ed), § 57:21, p 231 (“In
    ascertaining whether a particular claim falls within the scope of an arbitration agreement,
    the court should focus on the factual allegations in the complaint rather than the legal
    causes of action asserted; if the allegations underlying the claim touch matters covered by
    the arbitration agreement, then the claim must be arbitrated, whatever legal labels are
    attached to it.”).
    5
    For instance, in Doe v Princess Cruise Lines, Ltd, the court appears to have adopted the
    gist of its interpretation not from an examination of the ordinary meaning of the arbitration
    clause at issue but rather from caselaw discussing the need to place limits on the term
    “related to” as it appeared in a federal retirement statute. Doe v Princess Cruise Lines, Ltd,
    657 F3d 1204, 1218-1219 (CA 11, 2011), citing NY State Conference of Blue Cross & Blue
    Shield Plans v Travelers Ins Co, 
    514 US 645
    , 655; 
    115 S Ct 1671
    ; 
    131 L Ed 2d 695
     (1995).
    The Ohio case the majority relies on simply cited a case from the United States Court of
    Appeals for the Sixth Circuit for the same standard, calling it a “test” without suggesting
    that it reflected the meaning of the contractual language. Academy of Med of Cincinnati v
    Aetna Health, Inc, 108 Ohio St 3d 185, 186, 190-191; 
    842 NE2d 488
     (Ohio, 2006), citing
    Fazio v Lehman Bros, Inc, 340 F3d 386 (CA 6, 2003). Fazio, in turn, took the test from a
    decision of the United States Court of Appeals for the Fifth Circuit, again failing to ask
    whether the test accurately captured the meaning of the contract’s text. See Fazio, 340 F3d
    at 395, citing Ford v NYLCare Health Plans of the Gulf Coast, Inc, 141 F3d 243, 250-251
    (CA 5, 1998). Finally, in Ford, the Fifth Circuit applied Texas law, and its decision, like
    5
    capturing the ordinary meaning of “relative to your employment,” to the extent that the
    majority holds that this phrase requires asking whether the claim “can be maintained
    without reference” to the plaintiff’s employment. In the present context, “relative” means
    “a thing having a relation to or connection with or necessary dependence on another thing.”
    Merriam-Webster.com             Dictionary,          Relative          (accessed April 22, 2021) [https://perma.cc/7C5S-B3BP].
    Thus, if a “concern” must be “relative” to “employment,” the concern must have some
    connection to employment. And so if the concern can be made “without reference” to
    employment, perhaps we could conclude that the concern is not “relative
    to . . . employment.” 6
    the other decisions, did not describe how the formulation of the test is the proper product
    of contract interpretation.
    6
    It is noteworthy, however, that courts frequently characterize arbitration clauses using
    this basic phrase, i.e., “relating to,” as “broad.” See, e.g., Hallmark Partners, 227 So 3d at
    1056 (“Narrow arbitration language governs disputes that ‘arise out of’ the contract, while
    broad clauses cover disputes that ‘relate to’ or ‘are connected with’ the contract.”). But the
    majority’s failure to apply its new standard in this case—something we often do in cases
    that develop a new standard—leaves doubt about how broad or narrow the standard is.
    From the majority’s examples, the standard would seem to severely limit the scope of
    arbitrable disputes. The majority asks whether a client of the Firm or a server at a restaurant
    could bring the same sexual-assault claims as the plaintiffs in these circumstances. If so,
    then the claims do not relate to employment. The answer clearly appears to be that those
    individuals could bring the same claims. Thus, the result of the majority’s hypotheticals is
    that only those disputes arising from a core aspect of the employment relationship, such as
    a dispute over the terms of the employment agreement, must be arbitrated. But if the parties
    wanted to accomplish this, they could have used the language they included later in the
    agreement under which the Firm agreed to arbitrate “any claims” against its employees
    “arising out of the employment relationship . . . .” That language has been construed as
    narrower than the type of language at issue here involving disputes that “relate to”
    employment. See, e.g., United States ex rel Welch v My Left Foot Children’s Therapy,
    LLC, 871 F3d 791, 798 (CA 9, 2017) (“As we have held, the words arising out of are
    6
    But the arbitration agreement’s scope is not defined by the “concerns” that are
    “relative to . . . employment.” Instead, the arbitrable “concerns” involve “the application
    or interpretation of the Firm’s Policies and Procedures relative to your employment . . . .”
    Accordingly, a “concern” that must go to arbitration is one that regards how the policies
    and procedures were applied or interpreted “relative to [a plaintiff’s] employment.” From
    this perspective, the phrase “relative to [a plaintiff’s] employment” simply excludes from
    the scope of arbitration a plaintiff’s concerns with the interpretation or application of the
    policies and procedures that are not related to that plaintiff. This would exclude an
    employee’s concerns about how the policies or procedures were interpreted or applied to
    another employee or how they were interpreted or applied in general, unrelated to any
    particular employee. 7
    Under the proper interpretation of the contract, then, the arbitrability of plaintiffs’
    common-law claims turns upon whether the Firm’s policies and procedures cover the
    ‘relatively narrow as arbitration clauses go’ . . . . [T]he phrase ‘relate to’ is broader than
    the phrases “arising out of’ or ‘arising under’ . . . .”) (citations omitted); Hallmark
    Partners, 227 So 3d at 1056 (“Narrow arbitration language governs disputes that ‘arise out
    of’ the contract, while broad clauses cover disputes that ‘relate to’ or ‘are connected with’
    the contract.”).
    7
    The majority elides the agreement’s reference to “the Firm’s Policies and Procedures” by
    dividing the relevant contractual language into three parts: “[1] all concerns you have [2]
    over the application or interpretation of the Firm’s Policies and Procedures [3] relative to
    your employment . . . .” The first two requirements are satisfied, according to the majority,
    and only the third remains to be decided on remand, i.e., whether the concerns were relative
    to plaintiffs’ employment. But the third part cannot be construed to simply relate back to
    “concerns” irrespective of the Firm’s policies and procedures, as the majority suggests.
    The “concerns” themselves are about how the Firm’s policies and procedures were applied
    “relative to [plaintiffs’] employment . . . .” Only by artificially separating the policies-and-
    procedures language can the majority create its freestanding “relative to your employment”
    requirement.
    7
    alleged conduct (sexual assault and harassment) and whether plaintiffs’ allegations concern
    the application or interpretation of those policies or procedures. Therefore, the application
    of the contract to this case requires an examination of the policies and procedures, which
    contain much that encompasses the factual allegations here. The Employee Policy Manual
    specifically proscribes sexual harassment, which it defines as “unwelcome or unwanted
    conduct of a sexual nature (verbal, written, physical or environment[al]) when” either
    (1) the “[s]ubmission to or rejection of this conduct is used as a factor in decisions affecting
    hiring, evaluation, promotion or other aspects of employment,” or (2) the “[c]onduct
    substantially interferes with an individual’s employment or creates an intimidating, hostile
    or offensive work environment.”         “This policy covers all employees,” the manual
    continues, and “[t]he Firm will not tolerate, condone or allow any incident of
    discrimination, harassment or retaliation. The Firm encourages reporting of all such
    incidents, regardless of who the offender may be.” If the employee cannot confront the
    harasser, he or she “must report any perceived discrimination, harassment, or retaliation to
    their [sic] supervisor or Human Resources.” An investigation will follow and “[p]rompt
    corrective action will be taken,” including by disciplining or firing the offender.
    Another portion of the manual establishes standards of conduct, the breach of which
    can lead to discipline. Included among these are “[s]exual or other unlawful or unwelcome
    harassment.” The Firm also “strongly discourage[s]” dating between employees and
    prohibits an employee from dating a supervisor—if a relationship with a supervisor occurs,
    one of the employees is subject to transfer or termination. In yet another section, the
    manual states that coworkers must be treated “with courtesy and respect at all times.”
    Further, “[t]he Firm does not allow behavior in the workplace at any time that threatens,
    8
    intimidates, bullies, or coerces another employee” or that harasses another employee on
    the basis of sex. This prohibition extends to any proscribed acts “that might occur on our
    premises at any time, at work-related functions, or outside work if it affects the workplace.”
    Again, violations are to be reported, with investigations and discipline to follow. The
    manual puts the Firm’s Compliance Officer in charge of investigating and resolving all
    complaints alleging that a policy has been violated.
    In sum, the manual specifically proscribes unwanted sexual contact and a great deal
    of behavior that might surround that contact, such as verbal harassment or an abusive work
    environment. The manual also establishes a general requirement of respect for coworkers,
    and it puts in place a procedure for complaints concerning violations of the Firm’s policies.
    The question is whether plaintiffs’ allegations involve concerns with how the Firm’s
    policies were interpreted or applied to them. I believe that the facts laid out in the complaint
    meet this requirement. Both plaintiffs allege that Morse engaged in behavior that would
    directly violate the manual. Plaintiff Samantha Lichon contends that Morse sexually
    harassed her at work, both verbally and physically. “At all relevant times,” her complaint
    states, she was an employee of Morse and the Firm. Also “[a]t all relevant times,” Morse
    was an agent of the Firm and was “acting within the course and scope of his employment.”
    She further states that she made multiple reports of this behavior to her superiors and to the
    human resources department, but that no action was taken and the harassment continued.
    This conduct created an intimidating and hostile work environment that “substantially
    interfered with [her] employment.”
    With regard to her claims against the Firm for negligent and intentional infliction of
    emotional distress, Lichon alleges that the Firm failed to remedy the situation after her
    9
    formal complaints, failed to supervise Morse, failed to maintain safe premises, failed to
    have safeguards against sexual assaults, failed to provide a safe work environment, and
    assisted Morse in seeking to cover up the assault. The last contention refers to Lichon’s
    allegation that, a few months after she was fired, an employee of the Firm intimidated her
    in an attempt to dissuade her from filing suit against defendants. This gives rise to her
    claim of civil conspiracy against defendants for trying to prevent her lawsuit.
    At the core of all the legal claims are Lichon’s allegations of sexual harassment and
    the Firm’s related failure to abide by its policies and procedures. She contends, in essence,
    that Morse engaged in conduct violating the Firm’s policies and that the Firm failed to
    redress these violations in accordance with the manual. The claims thus represent Lichon’s
    concerns with how the Firm’s policies and procedures were interpreted or applied relative
    to her employment. The claims therefore fall within the substantive scope of the arbitration
    clause.
    The analysis is the same for plaintiff Jordan Smits’s allegations. Both of her
    complaints concern events that occurred at the Firm’s 2015 Christmas party. Smits
    contends that Morse sexually assaulted her in front of other employees by grabbing her
    breasts at that employee-only party. Smits claims to have reported the assault to the Firm’s
    human resources department, which did nothing in response. After resigning and refusing
    to sign a nondisclosure agreement, Smits says she received a call from an employee of the
    Firm warning her that Morse “could make it difficult” for Smits “to get a job.” She further
    states that the Firm was aware of Morse’s similar behavior with other female employees
    and therefore knew of his propensity for such acts. The Firm also failed to remedy the
    10
    situation, properly supervise Morse, provide a safe workplace, and conduct company
    events in a safe manner.
    As with Lichon, all of Smits’s legal claims surround the assault, the lack of response
    to Smits’s internal complaints concerning the assault, and the attempted cover-up. Like
    Lichon’s allegations, Smits’s factual contentions similarly represent her concerns
    regarding how the Firm’s policies and procedures were interpreted or applied relative to
    her employment. Therefore, like Lichon’s claims, Smits’s claims are within the substantive
    scope of the arbitration clause.
    This analysis suffices to determine that the claims are arbitrable under the contract.
    The Firm, as a signatory of the agreement, can therefore seek to compel arbitration pursuant
    to the contract. But Morse, in his individual capacity, did not sign the agreement. Thus,
    the next question is whether he can invoke the agreement. Because this was not decided
    below, I would remand the case to determine whether Morse can compel arbitration despite
    being a nonsignatory. 8 If Morse has such authority, then under the analysis above, the
    8
    It is possible that the plain language of the arbitration clause covers these claims against
    Morse. It states, “This Procedure [i.e., the arbitration clause] includes any claim against
    another employee of the Firm for violation of the Firm’s Policies, discriminatory conduct
    or violation of other state or federal employment or labor laws.” But interpreting the
    arbitration clause to cover the claims against Morse would require a finding that Morse is
    an employee of the Firm. As the Court of Appeals majority noted below, the Firm’s
    regulatory filings show that “Morse is the president, secretary, treasurer, director, and sole
    shareholder of the Morse firm.” Lichon v Morse, 
    327 Mich App 375
    , 396; 933 NW2d 506
    (2019). It is not clear, however, whether he would also be considered an employee for
    purposes of the arbitration clause. Alternatively, various courts have recognized that
    nonsignatories can enforce arbitration agreements in certain circumstances, such as “when
    the issues in dispute are intertwined with the agreement that the signatory signed, or if there
    is a close relationship between the entities involved and between the alleged wrongs and
    the contract . . . .” Application of Equitable Estoppel to Compel Arbitration By or Against
    Nonsignatory—State Cases, 22 ALR6th 387, 403, § 2; see also GE Energy Power
    11
    substance of the claims made against him falls within the contract, and those claims, like
    the claims against the Firm, are subject to arbitration. 9
    In reaching a different conclusion, the majority upends the parties’ allocation of
    certain disputes to arbitration and others to litigation. The parties specified the range of
    arbitrable subjects by linking arbitration to the matters contained in the Firm’s policies and
    procedures. This made the scope of arbitration more concrete than it would be under the
    open-ended standard fashioned by the majority today. The application of the majority’s
    standard will rely heavily on a court’s belief about what “relates” to employment. The
    majority’s failure to apply the standard here also yields no insights. Results will vary, and
    the stability the parties sought by invoking the policies and procedures will be lost.
    In some cases, under this new standard, employees will be forced to litigate certain
    “concerns” they clearly intended to arbitrate—those involving a dispute about how a
    provision in the policies and procedures has been applied to him or her. If a court does not
    Conversion France SAS, Corp v Outokumpu Stainless USA, LLC, 590 US ___, ___; 
    140 S Ct 1637
    , 1643-1644; 
    207 L Ed 2d 1
     (2020) (recognizing “that arbitration agreements may
    be enforced by nonsignatories through assumption, piercing the corporate veil, alter ego,
    incorporation by reference, third-party beneficiary theories, waiver and estoppel”) (cleaned
    up). Our Court of Appeals has similarly observed that whether nonsignatories can arbitrate
    depends on general common-law principles, such as agency law. See American Federation
    of State, Co & Muni Employees, Council 25 v Wayne Co, 
    292 Mich App 68
    , 81; 811 NW2d
    4 (2011).
    9
    Plaintiffs develop other arguments against enforcement of the arbitration agreement by
    the Firm or Morse, including that the agreement is unconscionable and illusory and that
    defendants forfeited their right to enforce arbitration. These arguments do not directly
    involve the interpretation of the agreement and were not addressed by the Court of Appeals
    below. My resolution of the interpretive issues before the Court here would leave plaintiffs
    free to raise these other arguments on remand.
    12
    believe that the concern truly relates to employment—despite the fact that the subject
    matter has been placed in the policies and procedures—then the dispute will be headed to
    court.    Conversely, in other cases, a court might conclude that a dispute relates to
    employment even though the subject matter is not covered by the policies and procedures
    (and therefore does not fall within the ordinary meaning of the arbitration clause, as
    discussed above). The court will accordingly order arbitration of a dispute the parties
    wanted to litigate.
    By disregarding the text, the majority has attempted to craft a standard rather than
    interpret a contract. The resulting analysis resembles common-law rulemaking that seeks
    to find or formulate what the court thinks is the best rule for the circumstances. 10 But our
    imperative is to enforce the agreement into which the parties freely entered. See Rory v
    Continental Ins Co, 
    473 Mich 457
    , 469; 703 NW2d 23 (2005). Because the majority
    opinion today departs from these foundational principles, I dissent.
    David F. Viviano
    Brian K. Zahra
    WELCH, J., did not participate in the disposition of this case because the Court
    considered it before she assumed office.
    10
    The majority also invites plaintiffs to amend their complaints and “remind[s]” the lower
    courts of the lenient standard for amendments. The question of arbitrability here depends
    on the factual allegations of the complaint and whether they fall within the arbitration
    clause. By encouraging plaintiffs to amend, the majority appears to implicitly agree with
    my conclusion that, as they stand now, the allegations in the complaints require arbitration.
    In any event, one is left to wonder why the majority is so confident that plaintiffs have at
    the ready an alternate set of facts to plead in avoidance of the arbitration clause. See Miller
    v Chapman Contracting, 
    477 Mich 102
    , 105; 730 NW2d 462 (2007) (noting that although
    leave to amend should be freely given, it should be denied if the amendment would be
    futile).
    13