The Michigan Supreme Court has recently held that the employee’s motivation is no longer a determining factor in whether the Whistleblower Protection Act (WPA) protects the employee from an adverse employment action.
Since the underlying purpose of the Act is to protect the public, municipalities are most vulnerable to a WPA claim. If government officials, who are bound to serve the public and violate laws, designed to protect the public, then employees who at their own risk blow the whistle on such illegality necessarily serve the public interest and are protected by the WPA. The WPA prohibits an employer from taking adverse action against an employee for reporting, or about to report, a violation of law. If an employee is demoted, disciplined or terminated and a link can be made between this and his reporting of a violation, he can then sue his employer for violating the WPA.
In one of the first decisions to interpret the WPA, Shallal v. Catholic Services of Wayne County, the court determined that the critical inquiry is whether the employee acted in good faith and with “a desire to inform the public on matters of public concern.” If the employee did not have a genuine motive behind the reporting they could not avail themselves of the protection of the Act.
This reasoning was reinforced in the decision in Whitman v. City of Burton. Police chief Whitman claimed his contract was not renewed due to his public objections to the City’s non- payment of overtime wages. The Chief argued that this was a violation of the City ordinance, and therefore, protected activity. The Court of Appeals, on two occasions, ruled that the Chief was not acting to advance the public interest and, therefore, he was not to be considered a whistleblower.
The Court of Appeals ruling was vacated, in part, by the Michigan Supreme Court in February 2016. The Supreme Court refused to accept the opinion of the Court of Appeals that an employee’s motivation in reporting a violation of law must be to advance the public interest for him to have the protection of the Act. Even though the Supreme Court has determined motivation is not a determining factor, they did uphold the dismissal of the Chief’s claim based on an unrelated issue. One has to wonder if the Court would have found the Chief’s motivation was not determinative if there was not another basis upon which he could be denied the protection of the Act.
Based upon this recent Whitman decision, it is evident that the employee need not have the advancement of the public interest at heart when they report a wrongdoing to avail themselves of the protection of the WPA.
Suzanne P. Bartos is an attorney in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation. She may be reached at 734-261-2400 or firstname.lastname@example.org.