Employment Law Series: Whistleblowers – Know Your Rights! (Tad Roumayah)

What exactly is a whistleblower? What rights do they have under the Michigan Whistleblowers’ Protection Act? Join attorneys Rob Sickels and Tad Roumayah of Sommers Schwartz Law Firm as they break down the essentials of whistleblower claims, including:

• Key elements of a whistleblower claim
• Examples of employer conduct that could lead to a claim
• Legal protections for employees in both private and public sectors
• What to do if you face retaliation for reporting illegal activities

If you suspect illegal activities in your workplace or need guidance on whistleblower laws, don’t wait.

Transcript

[00:00:00] Rob Sickels: Hello, I’m Rob Sickle. I’m here today with Tad Aya. And he is the head. He’s the guy who runs the employment department at this dynamite law firm of Summer Schwartz. So today I’m gonna talk to Tad about some really hot topics in employment law. I. A little bit about, uh, whistleblowers and the Whistleblower Protection Act. So to begin with, Ted just acquaint our viewers with what a whistleblower is and what the Whistleblower Protection Act is about.

[00:00:39] Tad Roumayah: Sure Rob. So the Whistleblower Protection Act in its name, it basically tells you what it is. It’s you’re making noise and you’re drawing attention. You’re blowing the whistle to something in your workplace that is illegal or that you suspect to be illegal. Now, these are some of the most courageous people at work.

They want to comply with the law. They want their employer to comply with the law. Oftentimes there’s a safety issue. Oftentimes there is, uh, there are regulations that govern the type of work that they do, and they want to make sure that things are being done right for the protection of everyone and so that everyone is treated equally.

Um, now the unfortunate reality of that is that oftentimes when you are the one blowing the whistle and you are the one. Um, bringing attention to something that your employer does that is illegal. You are often not going to be your employer’s favorite person. And we all, we all, you know, want to think or like to think that everyone wants to do the right thing, but some of these employers may not be doing the right thing, and it may be on purpose, it may be intentionally violating the.

[00:01:52] Rob Sickels: So Tad quickly tell us what the elements of a claim are. What needs to be proven in order to succeed with a whistleblower claim? I.

[00:02:01] Tad Roumayah: Sure. Uh, so normally an employee who gets retaliated against for blowing the whistle has to prove three things. One that they engaged in protected activity, meaning that they actually blew the whistle or were about to blow the whistle on their employer. Two, their employer knew about their protected activity, meaning the employer knew that you made a report of illegal activity, or you were about to make a report, or that you engaged in an investigation or a court action or some other type of inquiry related to their wrongdoing.

And then the last thing that they have to prove is that. There was a connection between your, your protected activity, making a report, for example, of wrongdoing and what the employer did to you. So if you file a complaint and you blow the whistle and your employer demotes you, we have to show that the demotion was a result of you blowing the whistle.

So a lot of times what an employer will try to do is they’ll try to raise some other reason. Which is called a legitimate, non-discriminatory reason. They’ll say, oh no, we didn’t demote them because of the whistle blowing. We demoted them because of performance. Just because an employer has a reason like that doesn’t mean that it’s true.

In fact, oftentimes what we do is we debunk those reasons. We show that they’re not even true, that they’re just made up by the employer to cover their tracks, and we are some of the best in the business at doing that. And so. Your employer can’t just run away from violating the law and retaliating against you for being a whistleblower because they made up some reason for why they did what they did to you.

It’s oftentimes not even true, and it’s not even really what made them do what made them retaliate against you. It was the whistle blowing that did that, and we’re able to prove that.

[00:03:47] Rob Sickels: Hey Ted, lemme stop you there and ask you this. What are some kinds of things or some examples of conduct by an employer that may qualify as something that an employee would report? I.

[00:04:03] Tad Roumayah: And so, uh, there are countless, and ev this law really governs every industry. It governs public employment, private employment, but some common examples of things that we see are I. Um, fraud or skirting safety regulations or trying to avoid, um, obligations when it comes to protecting employees. Um. One example, I just had a, a verdict in a case where the, we had a jury trial in September where we were successful for our client in winning that jury trial.

Um, my client was a teacher at a local school district. My client student drew a picture of the student shooting my client with a gun. My client reported this to her school administration, and 11 days later, the school district fired my client. We sued under the Whistleblowers Protection Act, which is the law that we’re talking about today, and we were successful after a couple years of litigation.

We won that case because we were able to prove that the school district fired my client because of her raising that there was a, a safety threat in the school because this, this student drew a picture of a firearm pointed at my client,

[00:05:23] Rob Sickels: So this, this was a, a, a one-off event, right? So, so my question is, does a plaintiff in a whistleblower suit need to prove that there’s a pattern of conduct, or is a single violation or a single egregious event sufficient?

[00:05:41] Tad Roumayah: That’s a great question, Rob, and it’s important to understand that a single event is enough. For the for you to have protection under the Whistleblowers Protection Act.

What’s important to understand is that even if it’s not an actual violation of law, even if all you are doing is suspecting that there’s a violation of law that’s occurring and you report that you are still protected from retaliation under the Whistleblower’s Protection Act, the statute. It says that as an employee you can report a violation or suspected violation of law, and as long as you in good faith believe that there was a violation happening, even if it never actually happened, you still have protections under the, under the statute.

In addition to that, even if you haven’t actually made a report, but you are in the process of making a report about to report a violation or suspected violation of law. And you are retaliated against by your employer, for example, you get fired for doing that. You still are protected on the Whistleblower’s Protection Act.

So it doesn’t even have to be a actual violation of law, and you don’t even have to actually report as long as you are taking steps to report. And if you are retaliated against, you are protected.

[00:06:57] Rob Sickels: Hey, who are these people who, who are willing to come forward and re report illegal activity on the part of their employer? I imagine it takes a lot of courage to do that, given that their employment may be in the balance.

[00:07:14] Tad Roumayah: Absolutely Rob, and these are some of the most brave. And courageous people in the workplace. These are people who see something and say something about it, and they, and they try to do the right thing and they try to follow the rules. And this is exactly why the Whistleblowers Protection Act exists because it covers employees in the private sector, employees in the public sector, as long as

An employee has a job, they’re, they’re covered under the Whistleblowers Protection Act. Now, an important thing that you have to under that folks, I think out there need to understand is that in order to have protection under the Whistleblowers Protection Act, you have to make a report of the violation or suspected violation of law to a public body.

A public body is a government agency, a law enforcement agency. It’s usually some type of governmental institution, the Attorney general’s office that is supposed to be able to do something about the violation that you are seeing. Now, if you work for a private company, say you work at an auto company that’s a non-government body, you have to make the report outside of your private employer.

You have to go to the government body. For example, police, the attorney general’s office. The, um, some type of, uh, governmental institution so that you can obtain the protections under the Whistleblowers Protection Act. Simply making a report internally, I. To your private employer, to your manager is not enough to be covered under this law.

There are other laws that may cover your, that may protect you for that activity, but the Whistleblowers Protection Act requires you to have to go to a governmental agency. Now, one important caveat to that is that if you work at a government body already, say you work at a school district, say you work at any of the many governmental agencies that our government has.

And you make a report internally to your manager or to your administration in that governmental body, that is enough to be covered on the whistleblowers protection ad because you already work for a public body. You’re not like the person at the auto company where you have to go to a governmental agency.

You already work at the agency, so you are covered.

[00:09:34] Rob Sickels: Uh, tad something, uh, that I’ve been thinking about is I. A situation where an employee is called into an investigation regarding some other employee’s complaint, are there protections under the Whistleblower Protection Act that would apply to that person?

[00:09:55] Tad Roumayah: Absolutely Rob. And so it’s important to understand that the Whistleblower Blowers Protection Act does not only protect employees who actively make a report of wrongdoing or illegal activity. The Whistleblowers Protection Act also protects employees who are called in, for example, by an agency. Who’s doing an investigation into your employer.

If you are a part of that investigation and you’re being interviewed or you’re, or you’re involved in an inquiry or a court action, even by someone that’s against your employer, trying to dig into what the employer is doing, even if you did not make the report yourself. And all you did was participate in that investigation or that court action.

You still have protections from retaliation by your employer under the Whistleblowers Protection Act. So it’s not making the report. It’s also if you participate in an investigation from somebody else’s report, you can still be protected.

[00:10:51] Rob Sickels: So it would behoove, uh, such a person who’s been called into an investigation to consult with an attorney such as you.

[00:10:59] Tad Roumayah: That’s right. So if for example, there is an attorney that’s making, doing an investigation and your employer finds out that you were called in to, to talk to that attorney, then you may be protected or the Whistleblower’s Protection Act, even if you yourself did not make the original complaint or report.

[00:11:18] Rob Sickels: So let’s assume that, uh, an employee has made a whistleblower claim. Tell us what, uh, an employer is prohibited from doing in that circumstance.

[00:11:29] Tad Roumayah: Okay. So a lot of times people think that. A firing alone is the only type of activity that is actionable or that you can get a remedy for under the whistleblower statute. That’s not true. While the Whistleblower Protection Act does prohibit your employer from firing you. Because you blew the whistle and pointed out illegal or activity or act or activity that you suspected to be illegal, there are also other protections.

For example, your employer can’t discriminate against you regarding your compensation, your terms, conditions, location, or privileges of employment. Because you engaged in a whistleblowing behavior. So it’s not just a termination, it’s also if they dock your pay, if they demote you, if they move you to a less desirable assignment.

Um, another thing that’s protected is that they can’t threaten you in any way. So even if an employer says, if you, um, don’t resign, we’re gonna fire you. That’s a threat. So that is even, um, prohibited under the statute. So there is a lot of conduct by your employer that is viewed as retaliatory against you for being a whistleblower that is protected under the statute that is prohibited, I should say, under the statute.

So even if you are not terminated, but your employer starts putting you through the gauntlet, so to speak, because you made. You stood up and you were courageous and you wanted to do the right thing and you blew the whistle, you can still be protected even if you haven’t lost your job.

[00:13:02] Rob Sickels: So, all right, let me ask this. So if an employee has the courage to, uh, file a whistleblower report and then gets the boot or gets demoted, how much time do they have to bring a claim?

[00:13:21] Tad Roumayah: So that’s a great question, Rob. This. Statute, the whistle, Michigan Whistleblowers Protection Act has one of the shortest statutes of limitation out of any law that we have in in the state. What that means, the statute of limitation, is how much time you have to actually file a lawsuit after you are wronged.

So if you are a courageous employee that files or makes a complaint of an illegal activity or a whistleblower and your employer. Uh, discriminates against you, threatens you, or God forbid, terminates your employment. You have to act within 90 days, which is really only, it’s three months, 90 days. You have to, uh, file your lawsuit and you have to pursue your remedies.

If you don’t do it within 90 days, three months, then you are gonna lose out on your chance to pursue that case. It’s one of the stat, uh, the shortest statutes of limitations that we have. And so if you feel that you are. Embroiled in something like this where you’ve blown the whistle and you’re feeling retaliated against by your employer, it is essential that you reach out to an attorney right away as soon as possible because you may lose out on your chance to pursue a case or a lawsuit against your employer for a Whistleblower Protection Act.

[00:14:35] Rob Sickels: Hey Ted, I’ve got a question. I have lots of questions, but this question, um, has surfaced in my mind. Let’s say that, uh, an employee observes some illegal conduct, uh, some bad conduct that may be harmful to other employees, may be harmful to consumers. Um, and they have some question about whether or not

They should blow the whistle, uh, should that person come to you and get advice.

[00:15:07] Tad Roumayah: Absolutely Rob. Now, the reason is, is that we wanna make sure that we can help employees do the right thing in following the rules at work and enforcing and ensuring that their employer follows the rules at work because it helps everyone when there’s consistency and following the law. And number two, because there’s such a short statute of limitations on a case like this, it’s only 90 days that you have to file a lawsuit if you have been retaliated against by your employer for being a whistleblower.

So there are a couple of different reasons why it’s really smart to come to an attorney. Let’s talk about it, and let’s make sure that we guide the employee to do the right thing and also be protected.

[00:15:50] Rob Sickels: So you as an attorney, what, what are you doing once the individual comes to you, reports this bad conduct? What do you do then after they’ve come to you?

[00:16:04] Tad Roumayah: Well, we, we diagnose the case. We look at, we talk to the employee. We ensure that we. Respectfully and professionally obtain the facts of the case and confidentially obtain the facts of what’s going on at their workplace. Um, understand about what kind of job they’re doing, um, what their position is, title, what their compensation is, who their management is, what they’ve done that they’ve view as being protected activity and blowing the whistle, um, and also what their employer has done to them.

For doing that, for blowing the whistle. And so we, we look at all of the facts and circumstances and we diagnose their case and we prescribe them the best course of action moving forward to help protect them for doing the right thing in trying to ensure that everybody in their employer, at their employer is following the law.

[00:16:57] Rob Sickels: So Tad, tell me how successful you’ve been in pursuing these cases.

[00:17:02] Tad Roumayah: Well, I gotta tell you, Rob, the, these are some of the most common cases that we litigate at our, our, uh, firm and in our employment department. We’ve been very successful in pursuing these cases from pre-suit negotiations into litigation and right through jury trial. And, and I just had a jury trial, . Just a few months ago, um, where we were successful, uh, in getting a verdict, a substantial verdict for our client on a Whistleblower Protection Act claim.

So these are definitely within our wheelhouse. These are things we work on every day. I. We are probably some of the most well-versed attorneys in the state on these cases.

[00:17:42] Rob Sickels: let me interrupt you here a little. Um, talk a little bit about the financial incentives for, uh, a person to come forward and blow the whistle on their employer.

[00:17:53] Tad Roumayah: So there are certain remedies that are available to you, um, as a whistleblower protection, uh, act. Plaintiff, meaning you are the person who is suing your employer because they retaliated against you or fired you. Because, um, you blew the whistle, or you, or you, uh, pointed out the illegal activity. Um, there are several items under the statute that you can pursue as remedies for being retaliated against.

Um, in violation of the Whistleblower’s Protection Act one, you can pursue lost wages, meaning the pay that you were receiving at the job, you can re pursue lost benefits, the benefits that you were also . Being paid by your employer. Um, there are mental and emotional distress damages. So if you go through, um, and treat and you have mental and emotional impacts for what happened to you in terms of the discrimination or the retaliation that was done to you because you did the right thing and pointed out that there was a a violation of law, you can.

Recover those in a lawsuit. Um, you have attorney’s fees and costs. So if you hire an attorney to pursue the, uh, whistleblower Protection Act case for you, um, at the end of that case, if you prevail, if you win the case. The other side, your employer has to pay for your attorney’s fees, your cost of litigation and interest also for, for the time that you spent in the litigation.

So there are many different remedies available for somebody who steps up and actually does the right thing and is a whistleblower. Um, and all of this is, is because, uh, the state legislature recognized that people who stand up and do the right thing. Need to be protected from their employer’s, uh, retaliation against them for doing the right thing.

[00:19:39] Rob Sickels: So I assume that every potential whistleblower has this question on their mind. What’s the attorney’s cut? What, what do they get out of it?

[00:19:50] Tad Roumayah: That’s a great question, Rob. And you know, our compensation is such that we do these on a contingency fee basis. So when an an employee comes to us on a whistleblower case, you usually do not have to pay us anything, not even a dime. For our time or for our efforts in pursuing the case, we only get paid a percentage of the outcome that we are able to obtain for the employee.

So if we’re able to, uh, recover damages for that employee because they were retaliated against by their employer for being a whistleblower, then we will get a percentage of that. Um, compensation. We will not ask the employee normally to pay us any sort of retainer or upfront monies. If we believe that the case is strong enough and that it, that the Whistleblower’s Protection Act was violated, we will pursue it on a contingency fee basis.

We don’t get paid until we can get the client paid.

[00:20:48] Rob Sickels: Wow. That’s all great information. Tad um, go get ’em. I mean, uh, I’m very, very impressed with your knowledge of this area and with the success that you’ve had here at the firm. Thanks

[00:21:01] Tad Roumayah: Thank you, Rob. And yes, we are on our job, so thank you very much.