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When are Michigan ‘whistleblowers’ not protected under the law?

| Jan 20, 2021 | Whistleblowers |

The state’s Whistleblowers’ Protection Act (WPA) safeguards Michigan workers who report illegal conduct by an employer. While each case is different, there are instances where WPA protections do not extend to workers who witness wrongful activity by the company. These can include:

  • Employees who fail to meet whistleblower reporting requirements
  • Claims that do not advance the public interest
  • Contracted employees
  • Those who do not file a timely claim over retaliation

While employees who fail to meet reporting criteria or meet the deadline to file a complaint are typically denied whistleblower protections, the other two situations are less black and white.

Filing a whistleblower complaint

The WPA shields workers for “protected activities” when they believe their employer has violated a law, rule or regulation. This includes employees who take part in an investigation of the suspected illegal activity. The worker does not have to prove that an actual violation occurred as long as the complaint is filed in good faith.

The law makes it illegal for employers to retaliate against a whistleblower. For a claim to be valid, the worker must report the activity either verbally or in writing to a state officer, agency, law enforcement or other appropriate party.

Employees who only report violations to supervisors or internal departments are likely not covered under the WPA. Workers may argue they were in the process of filing a formal complaint. However, these cases require the worker to have clear and convincing evidence.

Under the WPA, employees only have 90 days to file a separate employment claim after being fired or suffering other negative consequences resulting from their protected whistleblower activities.

Gray areas exist over the “public interest” and for contract employees

Courts have typically held that an employee’s motivation for filing a whistleblower complaint does not matter. However, some judges have refused to extend WPA protections to workers who reported employer actions that harmed the employee but were not deemed to be in the public’s interest.

In another case, the court ruled against a man who filed a whistleblower complaint about three public officials’ alleged criminal activity. All three were acquitted of any wrongdoing, and the complainant’s contract was later not renewed. He charged this was in retaliation, but the court ruled WPA protections do not extend to applicants or those seeking renewal of employment contracts.

WPA claims are complicated, fact-oriented and time-sensitive

While courts have refused to extend whistleblower protections to employees in some instances, state and federal laws encourage workers to come forward when they witness fraud, corruption and mismanagement.

It is advisable to work with an experienced employment law attorney who understands the complexities of making a whistleblower complaint or when employers retaliate against those who take action.

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