The alleged (mis)handling of an employee's complaints of wrong-doing by her former employer offers insight on how to avoid a subsequent whistleblower claim or, at least, be in a better position to defend against such claims. 

Specifically, a Metro Detroit Employment Law firm was recently sued for violating (ironically) various employment laws. The law firm and named defendants were also alleged to have violated Michigan's computer crimes statute, MCL 752.791-97, which forms the basis for a whistleblower claim.

The Complaint filed in Wayne County Circuit (PDF) alleges that the defendant law firm's named partner and defendant stole computer records consisting of client information from his former law firm prior to departing to start a competing venture.

The computer statute generally targets computer intrusion crimes and traditional crimes committed through the use of computers, such as theft. Plaintiff, however, did not assert an actual claim under Michigan's computer statute and, instead, used the alleged violation as the cornerstone for her whistleblower claim, i.e., she was "about to report" the Defendants' violation of the Michigan computer statute to unspecified public bodies, which was one of the reasons she was fired.  

Under Michigan's Whistleblower’s Protection Act (WPA), MCL 15.362 et seq., employers are restricted from discharging, threatening, or otherwise discriminating against an employee because that employee reports or is "about to report" a violation or suspected violation of a federal or state statute or regulation to a public body. Where a claim is based on an "about to report" theory, the plaintiff must show by clear and convincing evidence that he or she was about to report, verbally or in writing, the violation or suspected violation of a state or federal law to a public body.  

The Take Away

While it remains to be seen how this litigation actually resolves, the Complaint offers a number of "rookie" employment law mistakes that employers should avoid. Consider for example, the employer is alleged to have no employee handbook and no Discrimination or Harassment policies in place. 

But an important "take-away" for employers is how to limit or otherwise avoid a subsequent Whitsleblower claim. In that regard, companies should consider the following points:

• Have policies in place that encourage the reporting of complaints;
• Take all complaints seriously and investigate all concerns;  
• Employers should encourage a reporting employee to document as many details of the alleged violation as possible so that the investigation is focused on the actual complaint. Such documentation has the added benefit that if the employee later claims retaliation, there will be a record of the reported conduct, which will be difficult to later modify or expand by the employee's lawyer; 
• Policies should expressly state that employees who report suspected violations will not be subject to retaliation in any manner and that any retaliation will not be tolerated; 
• Document all steps taken in the investigation process;
• Document a conclusion: Either the existence of a compliance issue or the absence of one; and
• If a violation occurred, document and follow through with corrective action.

While there certainly is no "silver bullet" for avoiding whistleblower claims, by being proactive and taking these steps, employers will better able to avoid such claims or, at least, put the employer in a better position to defend a subsequent whistleblower claim in the future.