On November 4, 2015, the Michigan Supreme Court heard oral argument in a wrongful discharge in violation of public policy claim under Michigan law. The central issue to be decided is whether that claim could be asserted or – as the employer contends – was the discharged employee limited exclusively to bringing a claim under Michigan’s Whistleblower Protection Act.
The stakes are especially high because the plaintiff, Roberto Landin, was awarded a $1.2 million judgment in 2008 against HealthSource Saginaw for his violation of public policy claim and that judgment was later affirmed on appeal in 2014. Reporter Mark Tower of MLive has a great summary here, including video excerpts from the actual argument.
At the time of his wrongful termination, Landin worked for HealthSource Saginaw as a nurse. He was employed by the hospital as an at-will employee. His employment was terminated in April 2006. Landin claimed he was terminated because he reported to a supervisor the negligence of a co-worker that Landin believed directly led to the death of a patient. After Landin reported the negligence, he was retaliated against by HealthSource and the retaliation ultimately culminated in his termination. In his complaint against HealthSource, Landin alleged wrongful discharge in violation of public policy.
HealthSource argued to the trial court, then to the Court of Appeals and now to the Michigan Supreme Court that Landin’s “exclusive remedy” for the alleged retaliation was under Michigan’s Whistleblowers’ Protection Act (the “Act” or “WPA”). As such, the public policy claim failed as a matter of law. The WPA prohibits retaliation against someone reporting a violation of state law. Landin, however, argued that he could not have reported the incident under the Whistleblower’s Protection Act because he was terminated before he could report it to a public body, a requirement under the WPA. Nonetheless, Landin argued, and the trial court and court of appeals agreed, that Landin stated a valid wrongful discharge in violation of public policy claim and the WPA was not his only remedy.
Michigan, like most states, presume an employment relationships are terminable at the will of either party. But, Michigan has an exception to the at-will employment doctrine if the discharge was in violation of public policy. The idea being that some grounds for discharging an employee are so contrary to public policy as to be actionable. However, such instances are limited under Michigan law to the following:
- Explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty (e.g., the Civil Rights Act, MCL 37.2701; the Whistleblowers’ Protection Act, MCL 15.362; the Persons With Disabilities Civil Rights Act, MCL 37.1602);
- Where the alleged reason for the discharge was the failure or refusal of the employee to violate a law in the course of employment (e.g., refusal to falsify pollution reports; refusal to give false testimony before a legislative committee; -3- refusal to participate in a price-fixing scheme); and
- Where the reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment (e.g., retaliation for filing workers’ compensation claims).
Here, the Court of Appeals concluded that Landin’s discharge claim could fall under the first and third bullet point and, therefore, he stated a viable claim for wrongful termination in violation of public policy. In reaching this decision, the Court of Appeals cited the trial court’s reasoning in making a “judgment call:”
The life and health of hospital patients depend upon the skill and competency of the professional medical staff—physicians, registered nurses, and licensed practical nurses, like plaintiff Landin and Nurse Johnson. To hold that Landin has no claim against the Defendant, is in essence, to hold that no good deed shall go unpunished. That cannot be the law. The Court therefore denies the motion to dismiss.
However, the Michigan Supreme Court will have the last word on this issue and whether the lower courts made the right judgment.
From a practical standpoint, the WPA was a statute that was intended to protect employees who reported or were about to report certain categories of wrongdoing on the part of an employer. However, obtaining protections under the WPA can be far from straightforward with respect to meeting the statutory elements for WPA protections.
And as the HealthSource case illustrates, those protections under the WPA can easily be eviscerated where an employer terminates the employee before he or she has a chance to report a violation. This creates, in our experience in representing both employers and employees in WPA claims, a perverse incentive to rush to judgment to obtain WPA protections or to terminate to avoid WPA liability. It will be interesting how the Michigan Supreme Court will resolve these policy issues in this case.
For more information about complying with the Michigan’s Whistleblower Protection Act, as well as minimizing the risks of wrongful termination claims under federal and Michigan law, contact employment attorney Jason Shinn.