Ask The Lawyer By: Daniel A. Gwinn, Esq.
YOU DON’T HAVE TO BLOW THE WHISTLE TO BE A WHISTLEBLOWER
QUESTION: I work for a business that is closely monitored by the government. One of our employees reported suspected violations of regulations to the government agency overseeing our work. There was an investigation into her allegations – and I was asked to participate. I believe that my statements to the investigators were responsible, in part, for my employer being fined and sanctioned. Two weeks after a report was issued, with the government’s findings, I was terminated. I think I was fired because my statements to the investigators, even though I didn’t report the company to the government. It doesn’t seem right.
ANSWER: Sometimes, when something doesn’t seem right, it isn’t right. And that’s true in your case. Under Michigan’s Whistleblower Protection Act (WPA), you don’t have to actually blow the whistle to be protected from retaliation.
The WPA MCL 15.362, protects activities by two distinct types of whistleblowers: “(1) those who report, or are about to report, violations of law, regulation, or rule to a public body, and (2) those who are requested by a public body to participate in an investigation held by that public body or in a court action.” Chandler v Dowell Schlumberger, Inc, 214 Mich App 111, 125, 542 NW2d 310 (1995).
Note that not all participation is protected – only participation that is requested by, or performed on behalf of, a public body. The law’s definition of a public body is generous: It includes any state officer, agency, employee department, division, bureau, board, commission, council, authority, state agency, county, city, township, village, school district, special district, law enforcement agency, or a body created or funded through a state or local authority, and the judiciary. MCL 15.361(d).
If you participated in an investigation by a government agency, your activity was protected under the WPA. To have a “prima facie” case (enough evidence to file a lawsuit under the WPA in good faith), you must show that your activity was protected under the Act, that you were discharged or discriminated against, and that there was a “causal connection” between your protected activity and the discharge. That is, you have to show that you were fired because you participated in the investigation. Where termination of employment, or other negative action, follows close on the heels of the protected activity, courts view it as circumstantial evidence of causation.
Once you have made your prima facie case, your employer may try to rebut your claims by offering a legitimate reason for its actions. What reasons might be given in your case?
After the employer has offered its legitimate reasons, the former employee may present evidence to show that the reason given is pretext — it’s not the real reason for the termination. For example, if your employer claims you were discharged for violating a policy against use of the internet during business hours – but the employer has never enforced that policy despite widespread internet use – you could argue your employer is using the policy as a pretext to justify your illegal discharge.
If you believe you have been discriminated against under the WPA, you should talk to an attorney about the strengths of your case. And, you should do so quickly: The WPA allows only 90 days after discharge to file a claim.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law