Whistleblowers are the unsung heroes of corporate America. They bring to light company practices that violate the law or endanger fellow employees and even the general public. Unfortunately, whistleblowers often risk discipline or even termination for speaking out.
In our state, the Michigan Whistleblowers’ Protection Act (WPA) protects whistleblowers from retaliation. Under the law, employers must not “discharge, threaten, or otherwise discriminate against an employee” who has reported possible legal or safety violations to a public body.
However, there are limits to the statute and ways in which some employees may lose whistleblower protection and the right to bring a lawsuit. These are things any employee who is considering reporting an employer to a government agency should understand and know about before taking action that could put his or her job at risk. Otherwise, any lawsuit he or she may seek to bring might be thrown out before it’s heard, due to lack of evidence or the right to sue.
Who Is a Whistleblower?
The WPA protects employees from retaliation. Under the WPA, “employee” is defined as “a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied.” This includes some government employees, but not independent contractors.
How Does the WPA Define “Public Body”?
In addition to being an employee as defined by the WPA, a whistleblower must make his or her disclosure to a suitable “public body” under the law. This can include state officers, branches of government, cities, the judiciary, law enforcement, and other entities and individuals – or “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.”
While this may seem quite exhaustive, this definition is often contentious in whistleblower litigation. For example, there is currently a case examining whether the fact that an attorney is a member of the state bar of Michigan – a government-created entity — means client communications constitute reporting to a public body.
Any employee contemplating making a report to a government agency should ensure it is one that will be considered a public body under the WPA. Otherwise, he or she may not be protected under the law.
What is “Protected Activity”?
To receive the protection of the WPA, an employee must be engaged in “protected activity” as designated by the law. For whistleblowers, that means the employee or someone acting on his or her behalf must report or be about to report a violation or suspected violation of the law, or participate in an investigation. This must be a violation or suspected violation that has already happened or is ongoing. The WPA does not protect an employee who reports someone’s stated intention of violating the law at some point in the future.
Burden of Proof Rests on the Whistleblower
When it comes to suing an employer for retaliation in Michigan, the burden of proof lies with the whistleblower. He or she must prove they were 1) engaged in whistleblowing activity protected by the WPA; 2) discharged, threatened or discriminated against; and 3) that there is a causal connection between the whistleblowing and the employer’s retaliation. In addition, if the employee hadn’t yet reported the situation to a government agency, he or she may also prove the retaliation happened because they were “about to report.” However, the evidence for this “about to report” type of whistleblowing case must be “clear and convincing” under the WPA, which is a higher standard than in other civil cases.
Statute of Limitations
Whistleblowers also face a ticking clock regarding how soon they must file a lawsuit. In general, the statute of limitations runs out 90 days after an employee is terminated. There are some exceptions to this, but in most cases, 90 days is the guideline.
Seek Counsel, Then Document, Document, Document
Any employee considering reporting an employer’s violation of the law to a public body should first speak with an experienced employment litigator who understands the nuances of these cases and the limitations under the WPA. He or she will be able to offer guidance to preserve, as much as possible, the employee’s right to file a whistleblower suit, should it become necessary.
That lawyer will likely advise the employee to begin taking steps to preserve his or her rights under the WPA. These would include, but are not limited to:
- Making a written report of the violation/suspected violation of law to the appropriate public body
- Keeping written evidence of that report
- Notifying the employer, preferably in writing, of the report
- Maintaining a written log of any threats, discrimination, or retaliation up to and including termination
- Acting quickly to enforce the employee’s WPA rights, given the 90-day statute of limitations
These steps can go a long way to satisfy the provisions of the WPA and ensure an employee’s whistleblower rights are as protected as possible before they make a report. Doing all of this can be the difference between a case that survives an initial motion to dismiss and one that moves successfully to trial and, hopefully, resolution in the employee’s favor.