The Michigan Whistleblower Protection Act (WPA) prohibits employers 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 to a public body a violation or a suspected violation of the law by the employer or fellow employees.
Employees on the receiving end of such whistleblower retaliation can file a civil lawsuit against their employer under the WPA. If an employee prevails in such an action, the court can award them a host of remedies including reinstatement, back wages, fringe benefits, mental and emotional distress, and attorney’s fees and costs.
Employees Are Protected from Retaliation for “Reporting or About to Report” a Violation of the Law to an Attorney
In 2016, the Michigan Court of Appeals issued its decision in McNeill-Marks v. MidMichigan Medical Center- Gratiot, which clarified that licensed attorneys who are members of the State Bar of Michigan qualify as “public bodies” under the WPA. Thus, pursuant to McNeill-Marks, an employee who reports, or is about to report, a violation or suspected violation of law to a licensed attorney is protected from retaliation by his or her employer.
A Recent Michigan Court of Appeals Decision Expounds Upon McNeill-Marks
On April 4, 2019, almost three years after McNeill-Marks was decided, the Michigan Court of Appeals revisited the issue of attorneys as “public bodies” under the WPA. In Rivera v. SVRC Industries, Inc., the Court of Appeals held that, while licensed attorneys remain “public bodies” under the WPA, the analysis does not stop there. The Rivera court opined that several factors should be taken into account when analyzing if an employee is protected under the WPA for reporting violations or suspected violations of law to a licensed attorney. These factors include whether the employee “took it upon” his or herself to communicate with the licensed attorney (as opposed to being directed by his or her employer to do so), whether the information communicated to the licensed attorney was already known to the employer, and whether the licensed attorney could be considered an agent of the employer (and thus not an outside “public body” within the meaning of the WPA).
Although licensed attorneys remain “public bodies” for purposes of the WPA, the Rivera court established additional considerations to take into account when deciding whether an employee is protected under the WPA for reporting violations or suspected violations of law to an attorney.
If you have questions about whistleblower protection or any other employment law or workplace issues, please contact Sommers Schwartz attorney Tad Roumayah at firstname.lastname@example.org or (248) 415-3210.