A recent opinion from the Michigan Court of Appeals illustrates the significant challenges employees have in successfully bringing a certain claim under the Michigan Whistleblowers’ Protection Act (WPA) and opportunities employers have for dismissing such claims.
Challenges for Employees making an “About to Report” Whistleblowers’ Protection Act Claim
Under Michigan’s Whistleblowers’ Protection Act (WPA), MCL 15.361, an employer is prohibited from, among other things, discharging an employee because the employee “reports or is about to report” a violation or suspected violation of the law.
One reason a Whistleblowers’ Protection Act claim based on an “about to report” theory is challenging for plaintiffs to successfully assert is because it requires a plaintiff to prove by clear and convincing evidence that he or she was about to report a statutory covered violation. MCL 15.363(4). A clear and convincing evidence is the most demanding standard applied in civil cases.
Assessing “About to Report” Claims under Whistleblowers’ Protection Act
In assessing whether there is “clear and convincing evidence” that a plaintiff was “about to report” a violation covered by the WPA, Michigan courts will often look to the spectrum of activity leading up to the adverse employment action.
This point was recently illustrated in the recent case of Pope v. Brinks Home Sec. Co. (2011) where the entirety of plaintiff’s evidence that she was “about to report” a violation of commission stealing and other alleged unethical behavior was her testimony that she told her supervisor that she was going to make a report to the EEOC and attorney general. Her supervisor denied this statement was ever made. Thus, plaintiff’s testimony raised a factual question that a jury would normally decide, it was not enough to meet the required “clear and convincing standard” called for under the WPA.
In contrast, Michigan courts have found the preceding was established where an employee threatened to report violations covered by the WPA if the employer did not take corrective action, she actually discussed the violations with her supervisor and coworkers, and documented dates that she had discussions with others regarding the need to report.
Employees who believe they were fired or received other adverse treatment because they were “about to report” a violation covered by the Michigan Whistleblowers’ Protection Act need to understand that it is rarely going to be enough to claim “I was fired but only because I was about to report a violation.” Instead, courts are essentially looking for credible evidence that the employee actually intended to report violations independent of the employee’s own intent or testimony. Following through with reporting the violation after the adverse employment decision may provide some evidence of a pre-termination decision to make a report covered by the WPA. Also, documenting dates of discussions and who was involved with discussions about suspected violations also provides additional evidence supporting an “about to report” WPA Claim.
For employers, the WPA does not prevent discharging an employee for legitimate, non-retaliatory reasons. But even with the high evidentiary burden employees may have to overcome in bringing a WPA claim, it is important to gather as much information to make an informed decision as to whether the discharge may violate the WPA. And it is important to make this assessment from the perspective of a judge or jury or may be “second-guessing” the employer’s decision.
This post on the Michigan Whistleblowers’ Protection Act is only an overview of a very narrow aspect of the Act. And like many areas of employment law, the WPA has specific, complicated, and nuanced statutory requirements, which should be addressed with experienced legal counsel. Reading even a beautifully written post like this is not a substitute for an attorney’s independent judgment, experience, and research.