Whistleblowers need more protection

Louis Eble

In light of the finger pointing from the Flint water crisis, it may be an appropriate time for the Michigan Legislature to amend the Michigan Whistleblowers’ Protection Act (WPA).

Lawmakers could provide better protection to the rare employee who has the courage to report an employer’s violation or suspected violation of the law. As it stands now, an employee who suffers retaliation is at risk of having almost no protection under the Act.

The WPA prevents an employer from discharging, threatening, or otherwise discriminating against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee reports or is about to report a violation or suspected violated of law to a public body, referred to as engaging in “protected activity.”

Unless the employee acts quickly, however, there is no protection under the Act. Under the WPA, the employee must file an action for relief within 90 days of the employer’s retaliatory action. This is an extremely short statute of limitations as compared to other statutes governing the workplace. For example, under the Michigan Elliot-Larsen Civil Rights Act, an employee has three years within which to file a complaint alleging retaliation.

While the United States Supreme Court has provided greater protection to employees alleging retaliation through its interpretation of federal anti-discrimination laws, the Michigan Supreme Court has gone in the opposite direction when interpreting the WPA. Under its interpretation of the WPA, an employee with a written contract often has less protection than an at-will employee. Worse, an employer’s plan to take a future adverse action against an employee is enough to start the already short 90-days limitations period within which an employee may bring a lawsuit, but an employee’s report of an employer’s plan to commit a future violation of the law is not enough to provide a whistleblowing employee any protection under the Act.

The Michigan Supreme Court ruled in a 2014 case that an employee working pursuant to a contract has no recourse under the WPA if an employer fails to renew his or her contract as a result of the employee engaging in protected activity. The Court reasoned that the WPA does not cover a prospective employee; therefore, a contract employee seeking a “new” term of employment is not protected by the Act. On the other hand, an at-will employee who has no guarantee of future employment would be protected if discharged under similar circumstances.

The Michigan Court of Appeals recently ruled in another case that a WPA lawsuit was untimely because it was filed outside the 90-day statute of limitations. The employee filed her lawsuit within 90 days of her discharge but more than 90 days from when the employer notified her of her future discharge.

Just last month, the Michigan Supreme Court ruled that the WPA does not protect an employee who reports an employer or co-worker who is planning to commit a violation of the law. So, if an employee attempts to prevent a crime from occurring by reporting it before it happens, the employee may be discharged by the employer without violating the WPA. If the employee lets a crime take place before reporting the misconduct, which at times will result in irreversible damage, the employee is protected by the WPA.

The purpose of the WPA is the protection of the public by removing barriers that may interfere with employees’ efforts to report violations of the law. To require that a crime must be completed, or is on-going, before implicating the WPA undermines its purpose.

The Michigan Legislature must address the WPA’s limitations by (1) increasing the statute of limitations to one year; (2) extending its protections to prospective employees; and (3) providing protection to an employee or prospective employee who reports a planned violation of any federal or state law.

Louis Eble is the owner of Louis B. Eble, PLLC, specializing in employment counseling and litigation.