Whistleblower claims routinely make the headlines. And for employers, whistleblower claims increase the chance of liability even in what should be otherwise routine adverse employment decisions.
By way of example, a number of years ago, I represented an employer in what should have been a garden variety wrongful discharge lawsuit. However, because of some "unfortunate" facts and circumstances this claim also implicated the Whistleblowers' Protection Act. And this this significantly changed the liability calculus as well as the claim's settlement value in what could have been a discrimination lawsuit that settled for nuisance value or been dismissed by way of motion.
Michigan's Whistleblower Protection Act
Whistleblower claims may arise under a patchwork of state or federal law. In this regard, Michigan has a Whistleblowers' Protection statute.
Under this act, an employer cannot discharge, threaten, or discriminate against an employee regarding employment, compensation, or a term, condition, location or privilege of employment because of protected activity. While this explanation of Michigan's Whistleblowers' Protection Act makes it appear to be straightforward employment protection statute, the devil is in the details and in its application.
Five Things to Know under Michigan's Whistleblower Protection Act
Here are four things Michigan employers and employees should understand when it comes to the Whistleblowers' Protection Act:
- "Protected activity" means: (i) An employee or a person acting on behalf of an employee reports or is about to report (either verbally or in writing) a violation or a suspected violation of a law, regulation, or a rule promulgated pursuant to the law of the state, a political subdivision of the state, or the United States, by the employer, a third party, or a co-employee to a public body, unless the employee knows that the report is false; (or) (ii) An employee participates at the request of a public body or has been requested by a public body to participate in an investigation, a hearing, or an inquiry held by that public body or a court action. (iii) A request for the employee to participate in an investigation, or a hearing, an inquiry, or a court action is considered protected activity even though the employee does not actually participate in any such investigation, hearing, inquiry, or court action.
- To prove causation for purposes of the Whistleblower Protection Act, the adverse employment “because of” means that protected activity must be one of the motives or reasons the defendant discharged, threatened, or discriminated against the plaintiff. Protected activity does not have to be the only reason, or even the main reason, but it does have to be one of the reasons that made a difference in defendant's decision to take any such adverse employment actions against the plaintiff.
- Also, proving causation requires the plaintiff to show that a decision-maker or a person who influenced the decision knew of plaintiff's protected activity. Knowledge may be shown by direct evidence or circumstantial evidence.
- A Whistleblower plaintiff must reasonably believe that a violation of law or a regulation has occurred. However, it is not necessary that an actual violation of law or a regulation has occurred, but the employee cannot have a reasonable belief if the employee knows the report is false.
- A Whistleblower claim must be brought within 90 days after the occurrence of the alleged violation of the WPA.
Closing Thoughts on Whistleblower Protection Claims
Again, issues relating to the Michigan's Whistleblowers' Protection Act can be complex and if you or your company is within an area code of a potential Whistleblowers Protection claim you should contact an experienced employment attorney to discuss your situation. This is especially true for employers because liability under the Act may expose your company to damages, as well as paying the reasonable attorney fees and costs of the plaintiff.
For more information about Michigan's Whistleblowers' Protection Act or other federal or Michigan employment law questions, contact Jason Shinn. He is a Michigan employment attorney who has been addressing these employment legal issues since 2001.