1. What legal protection does Michigan provide private sector employees in regard to whistleblowing and retaliation?
he general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Michigan recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to an established public policy in Michigan. An employee has a cause of action in other words, the employee may sue for retaliatory discharge when the motivation for the discharge violates a public policy.
To determine what constitutes public policy, Michigan courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Michigan statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Michigan's public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Michigan Legislature has adopted statutory protections for certain activities. Notably, Michigan has a general whistleblower protection statute the Whistleblowers' Protection Act (WPA) that prohibits retaliation against whistleblowers. Also, several other Michigan statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination (civil rights), minimum wage, occupational safety and health, payment of wages and fringe benefits, and persons with disabilities.
In addition to the WPA, the Michigan Legislature has enacted other statutory protections for employees with respect to certain kinds of activities. Employees who report discrimination, occupational safety and health violations, and certain wage law violations are protected by statute.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that is contrary to the public policy of Michigan. Thus, an employee may not be discharged for her failure or refusal to violate a law in the course of employment. Also, an employee may not be discharged in retaliation for exercising a right conferred by a statute. For example, workers have the right to file a workers' compensation claim. Discharging a worker who exercises this right by filing a workers' compensation claim is contrary to public policy, and so, the worker may sue her employer for retaliatory discharge.
Statutory Protections
General Whistleblower Protection: An employee may not be discharged (or discriminated against) in retaliation for reporting a suspected violation of a law (federal, state, or local), or for participating in an investigation, hearing, inquiry, or court action. The report may be made verbally or in writing, but it must be made to a public body (such as a state officer, state agency, school board, law enforcement agency, and member of the judiciary). An employee who discloses wrongdoing to a supervisor is not protected. An employee is not protected if she knows that the report is false. Mich. Comp. Laws § 15.362.
Discrimination Civil Rights: An employee may not be retaliated against (or discriminated against) for opposing a violation of Michigan's Elliott-Larsen Civil Rights Act, or for making a charge, filing a complaint, or participating in a proceeding/investigation under that statute. Mich. Comp. Laws § 37.2701.
Healthcare Workers: A healthcare worker may not be retaliated against for reporting an unsafe healthcare practice or condition in a healthcare facility. Mich. Comp. Laws § 333.20180.
Occupational Safety and Health: Several activities concerning occupational safety and health are protected:
- An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying at a proceeding, or exercising a right concerning occupational safety and health.
- An employee may not be penalized (or discriminated against) in retaliation for refusing to operate equipment or engage in a process that is "tagged" as presenting an imminent danger by a Department of Labor representative.
- An employee may not be penalized (or discriminated against) in retaliation for participating in an inspection, investigation, or conference concerning occupational safety and health laws.
Minimum Wage Laws: An employee may not be discharged (or discriminated against) in retaliation for testifying before the wage deviation board or for serving on the wage deviation board. The wage deviation board enforces the state's minimum wages laws. An employer who violates this provision is guilty of a misdemeanor. Mich. Comp. Laws § 408.395.
Payment of Wages and Fringe Benefits: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning payment of wages and fringe benefits. Mich. Comp. Laws § 408.483.
Persons With Disabilities Civil Rights Act: An employee may not be retaliated against (or discriminated against) for opposing a violation of the Persons With Disabilities Civil Rights Act, or for making a charge, filing a complaint, or participating in a proceeding/investigation under that same statute. Mich. Comp. Laws § 37.1602.
3. How do I file a whistleblower or retaliation claim in Michigan?
Generally: An employee may file a lawsuit for wrongful discharge in an appropriate court. The lawsuit must be filed within the period specified by the statute of limitations. For wrongful discharge claims, an employee must file a complaint within 3 years of the retaliatory action. However, a statute may specify a shorter statute of limitations, so you should consult the specific statute first. If you believe you have a claim, you should contact a lawyer.
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 90 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.
Occupational Safety and Health: An employee may file a discrimination complaint with the Michigan Department of Labor, Occupational Safety and Health Administration (MIOSHA). The complaint must be filed within 30 days of the retaliatory action. The Department of Labor has the power to order appropriate relief, such as reinstatement with back pay. If you believe you have a claim, you should contact MIOSHA immediately at:
MIOSHA
P.O. Box 30643
Lansing, MI 48909
Phone: 517-322-1814
Fax: 517-322-1775
E-mail: miosha_info@michigan.gov
Discrimination Complaint Form
Payment of Wages and Fringe Benefits: An employee may file a complaint with the Michigan Department of Labor, Wage & Hour Division. The complaint must be filed within 30 days of the retaliatory action. The Department will investigate the matter and may order the reinstatement with back pay. If you believe you have a claim, you should contact the Department of Labor immediately at the following address:
Michigan Department of Labor
Wage and Hour
7150 Harris Drive
PO Box 30476
Lansing, MI 48909-7976
Phone: 517-322-1825
Fax: 517-322-6352
E-mail: whinfo@michigan.gov