In Hays v Lutheran Social Services of Michigan, the Michigan Court of Appeals recently reversed a jury verdict in favor of a former employee who had filed a lawsuit against her employer based on Michigan’s Whistleblower Protection Act (the “WPA”).
The basis for the opinion is important for both Michigan employers and employees with respect to the technical requirements under the WPA for making a “report.” It also suggest that Michigan employees may have to achieve a certain level of virtue normally required of Saints, i.e., acting only for the good of the public and with no concern for the employee’s self-interests.
Overview of the Michigan Whistleblower Protection Act
Michigan’s Whistleblower Protection Act generally provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.
Often – as was the situation in the case under discussion – Michigan Whitsleblower Protection claims hinge on the issue of whether a plaintiff establishes that a “report” was made or about to be made, yet the WPA does not define the term “report.”
The WPA, Home-health Care Workers, Illegal Drugs, and the Police
Plaintiff was employed as a home-health care provider for the defendant employer. As a condition of her employment, Plaintiff had signed a client confidentially agreement, consenting to keep information about her clients confidential. During the course of her employment, she worked with an individual client (Client John Doe), who illegally smoked marijuana in his home and in her presence when she was there in the scope of her employment.
Subsequent to this assignment, Plaintiff contacted the police and specifically the Bay Area Narcotics Enforcement Team (“BAYANET”). She inquired about the potential consequences of knowing about the drug use of another and not reporting it. At the end of the conversation, when asked by the BAYANET official if she would like to take any further action, Plaintiff declined to do so.
After this call was made, Plaintiff was informed by her supervisor that a complaint had been lodged against Plaintiff for making a phone call about John Doe. Plaintiff admitted to her supervisor that she called BAYANET and she was subsequently terminated following this meeting. It is not clear the exact timing, but it appears Plaintiff’s call to the police, the complaint, and the termination were in close proximity.
Plaintiff Wins at the Trial level on her Whistleblower Protection Claim
After she was terminated, plaintiff initiated her lawsuit claiming she was terminated in violation of the Michigan Whistleblower Protection Act. A jury came back with a judgment in plaintiff’s favor in the amount of $77,897.50 and the trial court also assessed attorney fees and costs to plaintiff in the amount of $69,385.55.
Technical and Saintly Requirements for Whistleblower Protection?
On appeal, the Court reversed the trial court’s decision and concluded that Plaintiff failed to establish a prima facie case for her claims under the WPA. Specifically, the Court noted that according to plaintiff’s deposition testimony, she asked the BAYANET officer the following question – “If you’re in a situation where there’s illegal drugs and you happen – and this person happens to get in trouble, what is your consequence?”
The Court characterized Plaintiff’s inquiry as “essentially” her calling the police to inquire about her potential liability if John Doe’s illicit drug behavior was discovered and not to report any illegal behavior for the public good.
Plaintiff’s only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law.
Ultimately, this perceived self-interest was a substantial factor in the Court’s decision to reverse the jury’s verdict in favor of the individual plaintiff.
Closing Thoughts on Whistleblower Protection Burdens & Barriers
While this decision is obviously favorable for employers, it is understandable why Michigan employees and their attorneys should be concerned. This is because the Court seems to have essentially erected an absolute barrier to protection under Michigan’s Whistleblower Protection Act by requiring whistleblowers to be motivated solely for the public good and without reference or concern as to how informing the public may impact that particular employee. And this barrier was erected on a set of troubling facts:
- First, there does not appear to be any dispute that there was some illegal drug use at issue at the time the plaintiff first contacted the police.
- Second, one of the underpinnings of Michigan’s Whistleblower Protection Act is that it is to be liberally construed in favor of individuals like the plaintiff and Michigan courts have specifically noted: “Inherent in the WPA is a purpose to protect the public by protecting employees who report violations of laws and regulations. Terzano v. Wayne County, (Mich. Ct. App. 1996). This purpose also reflects the conflict many individuals face with respect to needing to work in order to support themselves and their family versus aspiring to protect the public good. Given this economic reality, what choice would you make?
- Third, the court opinion was not clear as to the timeline with respect to plaintiff’s phone call to the police and her termination, but it appears to be within close proximity of the other. And presumably the jury addressed this issue in deciding in Plaintiff’s favor in the first place.
Accordingly, this court opinion arguably encourages an employee to take a “shoot first, aim later” approach when it comes to making a report under the WPA, even where a number of complex factual and legal issues are involved. In this particular case, such issues included criminal drug laws, employment confidentiality agreements, health care information, and personal privacy issues.
For more more information about Michigan’s Whistleblower Protection Act and for complying with this statute as an employer or employee, contact Jason M. Shinn whose legal practice focuses on Michigan employment law compliance and litigation, including unlawful discrimination, sexual harassment, and investigating employee misconduct.