Cautionary Tale – Employee’s Profanity Laced Facebook Post is Protected Activity in a Recent Federal Court Decision

Beth Rae ODonnellOn April 21, 2017, the Second Circuit Court of appeals in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017), upheld the National Labor Relations Board’s conclusion that a terminated employee’s profanity based comments about his supervisor on Facebook were not so egregious as to exceed protection under the National Labor Relations Act (NLRA or Act).

Pier Sixty operates a catering company in New York City.  In 2011, many of its service employees began seeking union representation.  Both sides agreed that a tense union organizing campaign occurred which included threats from management that employees could be penalized or discharged for union activities.

Two days before the election, on October 25, 2011, Bob McSweeney, a supervisor, gave Hernan Perez, a server, directions in a harsh tone and told him to stop “chitchatting.”  About 45 minutes later, during an authorized break from work, Perez posted with his iPhone on his Facebook page:  “Bob is such a NASTY MOTHER FXXXER don’t know how to talk to people!!! Fxxk his mother and his entire Fxxxing family!!!  What a LOSER!!! VOTE YES for the UNION!!!”

“Bob” in the message was Perez’s supervisor.  Ten of Perez’s coworkers were his friends on Facebook.  Pier Sixty’s employees voted to unionize on October 27, 2011.  Perez took the Facebook post down on October 28, 2011.  Management of Pier Sixty learned of the Facebook post and fired Perez on November 9, 2011.  Perez filed a charge with the NLRB alleging he had been fired for “protected, concerted activities.” The Union organizer for the employees filed a second charge alleging unfair labor practices and that an employer is prohibited from discharging employees for participating in protected, union-related activity.

An Administrative Law Judge issued a decision in favor of Perez and following an appeal by Pier Sixty, the NLRB affirmed.  Pier Sixty filed a Petition for review with the Second Circuit.

The Second Circuit upheld the Board’s decision under a deferential standard of review applied for appeals of Board decisions in unfair labor practice cases.  The Court held that even though Perez’s message contained vulgar attacks on his supervisor and his supervisor’s family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the upcoming union election.  The Court noted that Pier Sixty had demonstrated hostility toward union activities and had threatened to rescind benefits or fire employees who voted for union representation.  Further, the Court found it persuasive that supervisors and employees alike frequently used profanity in the workplace for which no one was ever disciplined.  Finally, although the Court noted that the post was vulgar and inappropriate, the comment was not the equivalent to a “public outburst” in the presence of customers and could reasonably be distinguished for other cases of “opprobrious conduct.”

Although the Court ruled against the employer, the Court did note that it was analyzing the specific facts presented, and stated an employee engaged in protected activity could act in a way that would result in the loss of protection under the NLRA.  The Court gave deference to the findings of the Board but also stated that the case sits at the “outer-bounds” of protected, union-related comments.

This illustrates that employers must carefully examine all the facts and circumstances surrounding an employee’s social media activities when deciding whether a posting is related to workplace issues, and if it does, whether a posting is so egregious so as to lose NLRA protection.  The case also stands for the proposition that discipline was not evenly applied and this certainly worked against the employer. Finally, while it is key that social media policies not inhibit concerted activity, employers still have not lost the right to reasonably discipline employees who engage in abusive conduct that harms morale, particularly if it constitutes outrageous activity or discloses company trade secrets.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

A Few Common Reminders of the Family Medical Leave Act (FMLA)

Sue Bartos 2016The Family Medical Leave Act (FMLA) allows an eligible employee to take an unpaid, job-protected leave for a specified family and medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  A few of the common points of FMLA that may be forgotten by the employer are outlined below.

Can the employer have communications with the employee while they are on FMLA?

Yes. Under the FMLA regulations, interference with an employee’s leave includes not only refusing to authorize the leave, but also discouraging an employee from using that leave.  Asking or requiring an employee to work while on leave can cross the line to interference.  There is no bright line test to what is permissible or not.  The Courts have classified simple matters, such as an occasional phone call about a certain issue, an inquiry to close out a completed assignment, or an “unburdensome” request for materials to be permissible.  On the other hand, it will probably be impermissible to require an employee to substantially update a file or complete a task you were hoping they would have finished prior to leave.

To summarize, although the employer can communicate with the employee while he or she is on FMLA, it is recommended that the communication be for simple matters only.  Further, it is not recommended that the employer accept the employee’s offer to work while on leave.  Even if the employee voluntarily wants to work, he or she may later claim it was not voluntarily and an interference charge can be filed.

If the medical certification is completed and returned is FMLA leave automatic? 

No.  A completed and returned medical certification issued by a health care provider does not mean leave is automatic.  The employer needs to approve leave only if the employee has a serious health condition that makes him/her unable to perform one or more of the essential functions of their job. The employee is under the obligation to provide clear and sufficient information to enable the employer to determine if leave is required.

If an employee provides a certification form that is vague, incomplete, or contradictory, the employer has the obligation to request more information prior to leave being granted.  Merely stating “I am sick” or “I am depressed” does not give the employer enough information to make the determination on leave.  Do not be fooled by a doctor’s note that states the employee is “sick” or “needs a few days off to get better.”  The doctor must provide medical facts to support the employee’s need for leave and why the employee is unable to perform the essential functions of their job.

Can the employer request a second opinion?   

Yes.  If the employer is contesting the existence of a serious medical condition, requiring the employee to obtain a second opinion can be required by the employer.  If the two opinions conflict, a third opinion can be obtained.  The third opinion will be final and binding.

Can the employer request recertification?

Yes.  If the leave is for a period of more than 30 days, recertification can be requested.  If the leave is for less than 30 days, recertification can be requested if circumstances described in the original certification have changed or there is reasonable concern of the need for the leave.  In the case of intermittent leave, the medical provider should be provided the pattern of absences to determine if they are consistent with the serious health condition.

Please consult with Sue Bartos and the employment and labor law team at CMDA for any further questions you may have regarding the application of the Family Medical Leave Act.

Suzanne P. Bartos focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board, and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues.

She may be reached at (734) 261-2400 or sbartos@cmda-law.com.

Grant Obtains Dismissals on behalf of Judge and Prosecutor

Greg Grant 2013colorGreg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of his practice.

Greg Grant focuses his practice on municipal law, employment and labor law, insurance defense, and litigation.  He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act and Freedom of Information Act, and has earned dismissals in each of these areas.  Additionally, he frequently provides educational and training seminars on municipal topics to clients. 

He may be reached at (231) 922-1888 or ggrant@cmda-law.com.

Municipal Immunity under the Family and Medical Leave Act

FMLAThe Family and Medical Leave Act (FMLA) was enacted, in part, “to balance the demands of the workplace with the needs of families…in a manner that accommodates the legitimate interests of employers…” 29 USC 2601(b). The Act entitles eligible employees to take leave:

(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. 29 USC 2612(a)(1).

Sections (A)-(C) are generally referred to as “family-care provisions” and section (D) is referred to as a “self-care provision.” The FMLA applies to both private employers and municipalities. 29 USC 2611(4)(A)(iii). However, the Act’s applicability to municipalities is limited.

The Eleventh Amendment of the United States Constitution provides sovereign immunity to the States and any political subdivisions thereof from suits for damages, unless the State chooses to waive said immunity. U.S. Const. Amend. XI. Additionally, Congress may abrogate the States’ immunity from suit pursuant to its powers under § 5 of the Fourteenth Amendment. See e.g. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congress’ intention to abrogate the States’ sovereign immunity must be “unmistakably clear in the language of the statute.” Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003)

In Hibbs, the Supreme Court concluded that Congress clearly intended to abrogate the States’ sovereign immunity in enacting the family-care provisions of the FMLA. Specifically, the Court noted that the family-care provisions of the FMLA were aimed at providing a remedy for a history of gender-based discrimination in the administration of leave benefits. However, in Coleman v. Counter of Appeals of Maryland, 132 S.Ct. 1327, 182 L.Ed.2d 866 (2012), the Court held that Congress did not validly abrogate state sovereign immunity in enacting the FMLA’s self-care provision.

As a result, the defense of sovereign immunity is alive and well for damage claims against municipal employers for alleged violations of FMLA’s self-care provision. Id. at 1328. However, an employee may recover for prospective relief (i.e., reinstatements) where the employee establishes an ongoing violation of federal law. See Diaz v. Michigan Dept. of Corrections, 703 F.3d 956, 961-62 (6th Cir. 2013).

Matt Cross is an attorney in our Traverse City office where he focuses his practice on insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or mcross@cmda-law.com.

Occupational Safety and Health Act: New Rules for Injury and Illness Reporting

Gerry Davis 2016The workplace environment is governed by the Occupational Safety and Health Act (OSHA).  The United States Department of Labor’s Occupational Safety and Health Administration recently issued a final order that will require employers and many high-hazard industries to electronically submit injury and illness data to OSHA.  Such reporting is already required to be tracked, but the reporting aspect of such injury or illness is what is new.

The new rule prohibits, “employers from using drug testing or the threat of drug testing as a form of retaliation against employees who report injuries or illnesses.”  The new rule also “clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting,” additional to incorporating the existing prohibition on retaliation for reporting.  OSHA will then share the injury and illness data on its website as the organization believes such posting of injury and illness data will provide valuable information to employers, employees, employee representatives (unions) and researchers.

Accordingly, employers must be aware of the new rule and comply with the reporting requirements.  Employers must review “post-accident drug and alcohol testing policies,” since they will be more strictly scrutinized by OSHA going forward.  Some employers administer a drug and alcohol test to anyone that may have been involved in an incident or event resulting in injury or illness to an employee.

Accordingly, any policy that automatically tests employees who suffered work-related injuries will be targeted by OSHA because such policies may be viewed as deterring employees from workplace injury reporting.  The testing must be limited to circumstances where the employee likely contributed to the reported injury or illness.  If, for example, a hi-lo driver in a plant injured a co-worker, it is appropriate that the driver of the hi-lo be examined for drug and alcohol while the co-worker that was injured by the hi-lo driver probably should not be similarly examined.  The policy for alcohol and drug testing must be designed to accurately identify the impairment caused by the drug or alcohol use.

The employers must also consider tests that only measure very recent drug use to determine if an employee was impaired by alcohol or drugs at the time of the accident by use of tests which visually show how much drugs or alcohol caused impairment at the time of the accident, rather than merely be designed to show how much drugs or alcohol are in the employee’s system.

Employers should consider avoidance of post-accident drug and alcohol testing in favor of implementing reasonable suspicion testing instead, or using random drug and alcohol testing programs to deter drug use before an accident actually occurs.  Employers will be required to file state and federal reports for drug testing, but may continue to test for drugs and alcohol.  However, the employer is reminded not to retaliate in any way against an employee who reports workplace injury or illness.  Retaliation can include change in workplace duties, status, compensation, hours of work and other conditions of employment.  Consequently, an employer should avoid a mandatory drug testing policy after report of injury, unless justified by the circumstances, behavior of the workers, and other facts.

The motivating reason for this change of policy is to provide employees with the ability to truthfully and completely report workplace injuries and illnesses without fear of retaliation.

Attorneys from CMDA are available to evaluate workplace policies to help assure compliance with this and other laws.  OSHA provides fines of up to $12,471 for serious violations of these rules.

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Changes in Overtime Rules for Michigan Employers

Chris Schultz 2016The Fair Labor Standards Act (FLSA) has changed the overtime rules for certain salaried workers, which will be applicable to Michigan employers.  The changes are to be implemented on December 1, 2016.  Michigan business owners need to start planning now in order to avoid scrambling in November. 

Many Michigan closely held businesses classify salaried employees as being exempt from the overtime rules as a means of controlling payroll costs.  An exempt employee is an employee who is, 1) paid a salary; 2) the salary is equal to the minimum amount (see discussion below); and 3) their job duties primarily involve executive, administrative or professional duties or outside sales. 

Number 2 above is what has been changed with the new FLSA overtime rules.  Prior to December salaried employees are exempt from paid overtime if their annual salaries are a minimum of $23,660.  Effective in December, the annual salary must be $47,476 or more or $913 per week.  

Michigan employers will be required to comply with these rules.  Michigan small businesses already have to comply with the Affordable Care Act, and increased state minimum wages, and this change could cost employers more.  For business planning purposes, the employer needs to review the pay and the hours worked by their exempt employees.  After this analysis, if there are exempt salaried employees who are not paid the minimum annual salary, the employer can, 1) increase the salary of its exempt employees to the new level; 2) reclassify exempt employees to hourly employees and then restrict their overtime hours and overtime pay; or 3) start counting and controlling the hours exempt salaried exempt employees work.

Note that these change do not impact hourly employees who will still be paid 1.5 hourly rate for hours worked in excess of 40 hours in any single week. 

Christopher G. Schultz is a partner in our Livonia office where he concentrates his practice on representing businesses in many areas of the law. Additionally, he assists clients with estate and elder law planning. He may be reached at (734) 261-2400 or cschultz@cmda-law.com.

Sixth Circuit Holds Dismissal of Firefighter’s Retaliation Complaint

Photo.RaeODonnell.FriedlandOn June 22, 2016, the Sixth District Court of Appeals unanimously issued a decision and order affirming the United States District Court’s dismissal of a firefighter’s two count retaliation complaint against a local municipality, four former and current Trustees, and the Fire Chief.

Plaintiff, who is of Asian descent, submitted an application for the vacant Fire Chief position to the township Board of Trustees. During an open board meeting on September 25, 2012, and in a 5-1 vote, the Board disqualified plaintiff’s application as insufficient. Besides missing an entire third page where some of the plaintiff’s credentials would have been listed to complete his application, in response to a written question on the application regarding why he should be selected as chief, plaintiff responded by stating: “To put an end to the corrupt practices brought on by the Board.” In response to a question regarding his goals for the next five/ten years, plaintiff responded: “To witness justice prevail.” The court ruled that these statements on his written application were just plain insulting to the Board.

By way of background, two years previously, in March of 2010, plaintiff filed an EEOC complaint against the township alleging that he was removed as the township’s IT Administrator because he is Asian. The township defended this matter on the ground that plaintiff was not the IT Administrator, although he had assisted with some networking responsibilities in the past. The plaintiff did not pursue a lawsuit against the township in 2010. Following the plaintiff’s 2012 disqualification for the Chief position, he sued claiming the disqualification was in retaliation for his 2010 EEOC complaint in violation of Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larson Civil Rights Act (ELCRA). Plaintiff also claimed that he was harassed by the new Fire Chief in 2013 and 2014 in retaliation for the 2010 EEOC complaint. Plaintiff claimed $1.02 million in damages for lost future wages which he believed he was entitled to because he should have been hired for the vacant position.

The Appellate Court noted for the “failure to interview” portion of the retaliation claim, there was no direct evidence of discrimination and that even circumstantially, a former trustees’ subjective opinion, with nothing more, that the plaintiff was not interviewed due to his EEOC claim was insufficient as a matter of law to support a cause of action. The court also agreed that the current Fire Chief’s actions of counseling the plaintiff regarding his low participation rates were not materially adverse employment actions, nor were the warnings causally connected to the plaintiff’s prior EEOC claim. Another significant factor for both the trial court and appellate court was the fact that the timing between the 2010 EEOC charge and the September 25, 2012 decision by the Board not to interview the plaintiff was simply too remote to establish a claim of retaliation under Title VII order ELCRA. Central to both the trial and appellate court decisions was the United States Supreme Court decision of Univ. of Tex. SW. Med Ctr. V. Nassar, 133 S.Ct. 2517 (2013). To establish a prima facie case of retaliation under Nassar, a plaintiff would have to make an offer of proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions on the part of the employer”—meaning defendants could not have denied plaintiff an interview or counseled him for low participation “but for” their retaliatory intent. Both courts found that plaintiff could not prove this threshold requirement.

This case was handled by CMDA attorneys Elizabeth Rae-O’Donnell and Linda Davis Friedland.  Karen Daley assisted with preparing the motion.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, elder law, probate, trusts, guardianships and conservatorships. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.

U.S. Department of Labor Releases Final Overtime Rules

Gerry Davis 2016The Department of Labor recently released the final rules regarding the payment of overtime to employees, governed by the Fair Labor Standards Act (FLSA).  While the new rules were to go into effect in June of 2015, a large number of modifications changed the original draft, and the final rules are now made effective December 1, 2016.  This will allow employers the opportunity to anticipate the broad changes that will go into effect.

Under the current rules, employees earning $23,360 or less must be paid overtime at a rate of time and a half for work in excess of 40 hours per week.  The new rules effectively double the annual salary to $47,476 or $913 per week, below which level each employee must be paid time and a half for hours worked in excess of 40 hours per week.  This applies to full-time salaried workers.

Up to 10% of the Standard Salary Level can be satisfied through non-discretionary bonuses, incentives or commissions paid at least quarterly.  Thus, an employee earning less, but paid a non-discretionary bonus, incentive or commission on a quarterly basis of up to 10% of their salary, will not be required to automatically receive overtime compensation if the total wages plus 10% of those wages exceed $47,476 per year.

The new regulations also redefine “Highly Compensated Employees” and increases the level to $134,004 in total compensation, such that any employee earning above that level will be deemed “highly compensated,” and hence not subject to the overtime requirement.

Both the Standard Salary Level ($47,476) and the Highly Compensated Employees level ($134,004) will be automatically updated every three years to achieve a 40th percentile and 90th percentile, respectively, in setting the Standard Salary Level and Highly Compensated Employees level to account for inflation.  The first automatic adjustment will occur in January of 2020.

The FLSA further allows exemptions from overtime eligibility for certain categories, assuming the employees meet the above-recited Standard Salary Level, where the employee customarily and regularly performs at least one of the duties listed for the executive, administrative or professional exemptions which follow:

  • Executive – the employee’s primary duty must be to manage the business enterprise or a recognized department or subdivision of the enterprise, and the employee must regularly and customarily direct the work of at least two or more other full-time employees or their equivalents; and the employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to hiring, firing, advancement, promotion or other change of status of other employees must be given particular weight.
  • Administrative – the employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of importance.
  • Professional – the employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment in the field of science or learning, and the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
  • Creative Professional Employee – the employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
  • Computer Employee – employee is employed as a computer systems analyst, programmer, software engineer or similar skill-set, performing the following duties if the primary duty consists of the application of systems analyst techniques and procedures, including consulting with users to determine hardware, software or systems functional specifications, the design, development, documentation, analysis, creation, testing or modification of computer systems or programs related to systems design specifications or related to a specific user or to machine operating systems, or a combination of these duties, which require the same skill-set.
  • Outside Sales – employee’s primary duty must be making sales or obtaining orders or contracts for services or the use of facilities for which a consideration (money) will be paid by the customer, and the employee must be customarily and regularly engaged away from the employer’s place of business.

If the employee does not qualify as a “Highly Compensated Employee,” then the employee’s duties must meet all of the requirements in the aforesaid subcategories as Executive, Administrative, Professional, Computer Employee or Outside Sales.

There are a variety of strategies that the employer can engage for compliance, such as:

  • Converting salaried employees to hourly
  • Reducing the number of hours each employee works
  • Increasing base salary for employees who perform exempt duties and are currently paid below the Standard Salary Level
  • Reclassifying employees as non-exempt and pay overtime as required
  • Reclassifying employees as non-exempt and reduce hourly rate to maintain total annual compensation
  • Reviewing all incentive, bonus and commission programs to determine if any financial increases can be offset by decreases elsewhere in a rewards program
  • Reviewing the structure of the workforce and work processes

No single test or strategy will solve every employment issue or consideration, therefore a variety of strategies may be required.

As the new rules more closely approximate actual compensation in the marketplace, there will be more employees subject to the requirement of overtime compensation and the employer must take greater heed to assure compliance with the FLSA imposed by the Department of Labor and avoid the penalties and sanctions which noncompliance may generate.

Gerald C. Davis is a partner in our Livonia office where he concentrates his practice on corporate and business law, leveraged buy-outs, company reorganization and refinancing, analyzing investments for joint ventures, intellectual property, and drafting loan agreements. He may be reached at (734) 261-2400 or gdavis@cmda-law.com.

Attorney’s “FSLA Final Rule and its Impact on the Government Employer” Article Featured in MIPRIMA Publication

Sue Bartos 2016The June 2016 publication of the Michigan Public Risk Management Association (MIPRIMA) features an article written by Suzanne Bartos, an attorney in our Livonia office.  The informative article outlines the recently released rules regarding the payment of overtime to employees and its impact on the government employer.

To read the complete article, please click here.

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 sbartos@cmda-law.com.

An Employee’s Motivation is No Longer Determinative in a Whistleblower Protection Claim

Sue Bartos 2016The 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 sbartos@cmda-law.com.