On February 1, 2016, the Supreme Court of Michigan handed down a decision regarding an employee’s protection under MCL 15.362 (more commonly known as “Michigan’s Whistleblowers Protection Act” or the “WPA”). The WPA is a Michigan law which provides a cause of action for employees who have been discriminated against by their employer because they reported a violation or suspected violation of law. In Pace v. Edel-Harrelson, the Court held that an employee is only protected by the WPA when reporting a violation or suspected violation of the law which has already occurred or is currently ongoing. According to the Court, the protection afforded by the WPA does not extend to employees who report future violations or suspected intent to violate the law.
In Pace, an employee filed a WPA claim against her employer after her employment was terminated. The employee claimed that she was terminated for reporting an alleged conversation with a co-worker in which the co-worker mentioned that she planned to embezzle federal grant money. The employer, however, maintained that the employee was terminated due to her physically threatening and harassing behavior toward co-workers in the workplace.
The Court ruled that the employee had not stated a viable WPA claim. The Court reasoned that the employee could not have been fired in violation of the WPA because she had not reported a violation of the law or a suspected violation of the law. Instead the employee had reported a planned future violation of the law, which is not a protected activity under the WPA.
Despite the Court’s holding that the WPA does not cover reports of future violations of the law, the terminated employee further argued that she was protected because she believed that the embezzlement had already occurred at the time she reported it. The Court rejected this argument because that belief was not expressed when she reported the alleged violation to management or the authorities.
This case issues caution to both employers and employees. In Pace, the Court issues notice to employees that they will only be protected by the WPA for reporting any past or current violations of the law, not those yet to occur. Also, while the employer prevailed in this case, firing this employee resulted in a costly legal battle which lasted over four years.
This article was written by Tyler Kemper, law clerk.
