On February 3, 2017, the Michigan Supreme Court issued a ruling involving Michigan’s Whistleblowers’ Protection Act (WPA). The ruling requires employers to carefully evaluate any changes made to an employee’s position, job duties, and working conditions after that employee raises concerns that may be protected activity under the WPA. Otherwise, an employer may be setting themselves up to be later sued for violating the WPA.
Specifically, in Smith v. City of Flint (2017), Smith sued for a WPA violation. He continued to be employed by the Flint City Police Department and he was also president of the Flint City Police Officers Union when he filed suit. Before suing, Smith publicly complained that the revenue from a recent millage was not being used for hiring as many new police officers as possible.” A few months later, Smith was assigned the night shift—making it difficult for him to conduct his duties as union president during the day—and was relocated to the north end of Flint where crime is more prominent.
Michigan Supreme Court reverses finding of no WPA violation
The trial court decided for Flint and concluded that Smith suffered no adverse employment action because his assignment to patrol duty in a particular area of the city constituted no adverse employment action. The Court of Appeals agreed with the trial court and affirmed the decision.
The Michigan Supreme Court, however, reversed the decisions for the City. In doing so, the Court reasoned that Smith’s complaint sufficiently alleged discrimination under the WPA based on a job reassignment unique to the plaintiff during undesirable hours at an undesirable location.
Michigan’s Whistleblower Protection
Michigan’s WPA (MCL 15.361 et seq.) is intended to protect employees from wrongful termination or retaliation for participating in a protected activity. Under Michigan’s WPA, protected activities comprise:
- Employees who have reported to a public body a violation of law, regulation or rule;
- Employees about to report a violation; or
- Employees who have participated in hearings, investigations, or legislative inquiries.
The Smith case clarifies that individuals are not only protected from wrongful termination but retaliation. And employers must understand that retaliation may consist of, among other things, discrimination or threats of discrimination against an employee regarding “compensation, terms, conditions, location, or privileges of employment.”
Considerations for Avoiding a Whistleblower Violation
In light of Smith, it is important for employers to carefully evaluate any employment decision, not just those regarding termination, where protected activity is concerned to avoid liability. If an employee’s hours, schedule, or benefits change unfavorably at or after the time the employee partakes in what may be a protected activity, the employee may build a case against you and your business under WPA. If you will reduce an employee’s hours or benefits, or if you will change their schedule in a way that could be viewed as a demotion, be sure that you have a trail of documentation to justify the employment decision.
For more information about Whistleblower Protection or legal advice on how to respond to an employment situation where an employee engaging in protected activity, contact employment attorney Jason Shinn. Since 2001, Jason has represented employers and employees in Whistleblower Protection cases, as well as collaborating with employers to implement best HR practices and preventive measures.