Since 1980, the Michigan Whistleblower Protection Act (WPA) has been shielding those courageous employees who take the risk of exposing legal wrongdoing by their employers. In the typical WPA lawsuit, an employee is fired after reporting his employer to authorities for some violation of law – whether it be defrauding their customers or cutting corners on legally required public safety measures.
However, a savvy employer who is aware of the law may take action that stops just short of firing the whistleblower. Instead, the employer will find ways to make the whistleblower’s work life so miserable that he quits. While quitting might make it more difficult for that employee to successfully file a claim under the WPA, he could still have a case.
The whistleblower employee could make the argument that the employer’s actions were so severe that he had no other option than to quit, a concept known as “constructive termination.”
A recent federal case in Michigan, however, illustrates the difficulty of proving “constructive termination.” In Samaan v. General Dynamics Land Systems, the plaintiff reported concerns to his supervisors regarding tests run on vehicles that were to be used by the U.S. Army in combat zones. When no corrective action was taken, the plaintiff reported his concerns to the U.S. Army.
The plaintiff said he received negative performance evaluations after making his initial complaints – the first time in his 30 years at the company. He was also suspended without pay after he made his report to the U.S. Army “pending an investigation into his complaints and objections.” The employer claimed the suspension was not a result of the plaintiff’s whistleblowing, but because he had violated corporate policy by sending company information to his personal email accounts. A month later, the plaintiff resigned after his employer’s human resources department informed him he was going to be fired.
Under Michigan law, constructive termination occurs when an employer deliberately makes an employee’s working conditions “so intolerable that a reasonable person in the employee’s position would feel compelled to resign.” In the arbitration proceeding in this case, which was required under the plaintiff’s employment agreement, the judge found that the conditions the plaintiff endured were not “severe” enough to meet that criteria.
The above decision illustrates the importance of retaining competent employment law counsel prior to resigning from your position. If you are being treated unfairly at work after you’ve made a complaint, consult an attorney before you resign. The Employment Litigation attorneys at Sommers Schwartz can help you decide the proper steps to take so that you preserve your rights as a whistleblower.