BRIAN J GRABER LLC is a Michigan Whistleblower Protection Act lawyer representing employees retaliated against in violation of Michigan’s Whistleblowers’ Protection Act. Michigan follows the doctrine of employment-at-will. Under the doctrine of employment-at-will, an employer can fire an employee for any reason, including unfair reasons. However, the doctrine of employment-at-will is not absolute. In Michigan, an employer cannot terminate or otherwise retaliate against an employee because he or she engaged in protected activity as defined by the Act. Michigan’s Whistleblowers’ Protection Act, MCL 15.361(b) applies to a “person” who has one or more employees, including the state or a political subdivision of the state.

Protected Activity Under Michigan’s Whistleblowers’ Protection Act

Michigan’s Whistleblowers’ Protection Act, MCL 15.362 makes it a violation of the law for an employer to retaliate against an employee for engaging in the following protected activities:

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of law or regulation or rule promulgated pursuant to the law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
MCL 15.362

Michigan’s Whistleblower Protection Act protects employees who report actual or “suspected” violations of law to a public body. Employees who knowingly make false reports of an alleged violation of law to a public body have no protection under Michigan’s Whistleblower Protection Act.

An employee only gains protection under Michigan’s Whistleblowers’ Protection Act by reporting a violation or suspected violation of law to a “public body.” Michigan’s Whistleblower’s Protection Act, 15.361(d) defines a “public body” as follows:

(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.

(ii) An agency, board, commission, council, member, or employee of the legislative branch of state government.

(iii) A county, city, township, village, inter county, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof.

(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body.

(v) A law enforcement agency or any member or employee of a law enforcement agency.

(vi) The judiciary and any member or employee of the judiciary.
MCL 15.361(d)(i)-(vi)

An employee who works for an employer that meets the definition of “public body” likely engages in protected activity under Michigan’s Whistleblower Protection Act by making an internal report about a violation or suspected violation. However, an employee who works for a private employer that does not meet the definition of “public body” must report the violation or suspected violation of law to an outside “public body” to engage in protected activity under Michigan’s Whistleblowers’ Protection Act. Reports of violations or suspected violations of law to federal agencies may not be considered a report to a “public body” unless the federal agency is considered a law enforcement agency under MCL 15.361(d)(v).

Manager learns an employee reported a violation of the law to a public body. — Management is never happy to learn an employee reported a violation of law to a public body. However, evidence that the decision-maker knows an employee reported a violation or suspected of law to a public body before he or she takes adverse employment action helps establish causation.

Protected Activity for About to Report Violations

Michigan’s Whistleblowers’ Protection Act protects employees who are about to report a violation or suspected violation to a “public body” from retaliation. However, Michigan’s Whistleblower Protection Act, MCL 15.363(4) requires proof by “clear and convincing” evidence. Michigan’s Whistleblowers’ Protection Act provides as follows:

An employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf was about to report, verbally or in writing, a violation of a suspected violation of a law of this state, a political subdivision of this state, or the United States to a public body.
MCL 15.363

This standard requires evidence that the decision-maker knew the employee was about to report a violation or suspected violation of law to a public body.

Burden of Proof

Under Michigan’s Whistleblowers’ Protection Act, an employee may establish a prima facie case by proving that:

The employee engaged in protected activity as defined by the Act;
That the employer took adverse employment action against the employee; and
A causal connection exists between the protected activity and the adverse employment action.

In short, an employee must have some evidence that in some manner the adverse employment action was influenced by his or her protected activity. If the employer alleges that the adverse employment action was because of some legitimate non-retaliatory reason, the employee bears the uptime burden of proving the alleged non-retaliatory reason is a pretext.

Employee terminated in retaliation for reporting a violation of law to a public body. — Termination in retaliation for doing the right thing and reporting a violation of law to a public body violates Michigan’s Whistleblowers’ Protection Act.

Michigan’s Whistleblowers’ Protection Act – Remedies

Michigan’s Whistleblowers’ Protection Act provides successful employees with the following remedies:

A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.
MCL 15.364

A successful employee may seek compensation for the emotional distress flowing from a violation of Michigan’s Whistleblowers’ Protection Act.

90 Day Statute of Limitations

Michigan’s Whistleblower Protection Act, MCL 15.363(1) requires an employee alleging a violation to bring a civil action for damages within 90 days after the occurrence of the alleged violation of the Act. A civil action brought after 90 days is barred. If you believe that you may have a Whistleblowers’ Protection Act claim, contact BRIAN J GRABER LLC, a Michigan Whistleblowers’ Protection Act lawyer at (269) 230-6054 for a free confidential consultation.