TO ERR IS HUMAN, TO CORRECT DIVINE Kudos to the Michigan Supreme Court for having the character to admit they had previously misspoken on the subject of the Whistleblowers’ Protection Act (WPA) and for correcting that mistake . The WPA is a Michigan law that prohibits an employer from firing an employee because he or she has reported or is about to report a suspected violation of law. The court’s original misstatement came in Shallal v. Catholic Social Services of Wayne County, a 1997 case. Janet Shallal was a supervisory social worker who failed to adequately respond to a report of child abuse. The child was abused again and suffered permanent, severe brain damage. Shallal’s supervisor, Thomas Quinn, decided to fire her. Shallal, knowing she was about to get canned, decided that this would be an opportune time to threaten to report Quinn for allegedly drinking on the job and misusing agency funds. She then filed a claim under the WPA. The court was absolutely correct to rule that Shallal had no claim; she was not fired for her threat to report her boss but rather because of her own negligence. Unfortunately, as we all sometimes do, the court said too much, holding that the WPA requires a plaintiff’s report of suspected unlawful behavior to be primarily motivated by “a desire to inform the public on matters of public concern.” In context the court’s statement seemed harmless but over the years anti-plaintiff activist judges in lower Michigan courts abused this language in the Shallal case to negate workers’ rights under the WPA. Even after a worker showed he’d made a report of unlawful activity and was fired for this reason, these courts would look back at the motivation of his report with a narrow-minded view on the scope of the public’s concern. Burton, Michigan Chief of Police, Bruce Whitman, was initially a victim of this practice. Whitman complained about violation of a local ordinance that was supposed to allow him to cash unused sick, personal and vacation leave and the mayor refused to reappoint him for this. A jury found that the mayor violated the WPA but the Michigan Court of Appeals reversed the decision because Whitman was, according to the court, motivated by “advancing his own financial interests” and not by a concern for the public. As the city’s chief law enforcement officer, wasn’t it reasonable for Whitman to demand that the ordinance be followed? And isn’t a mayor’s failure to follow the law a matter of public concern? Rather than limit their decision to what is properly a matter of public concern, on review, the Michigan Supreme Court stepped back further still and pronounced that, so long as an employee earnestly suspected unlawful activity had occurred, his motivation for reporting it is not relevant; so far as they’d previously said otherwise, the Michigan Supreme Court admitted its prior error. Thanks to the judges’ unanimous decision, after 16 years, courageous Michigan whistleblowers that dare to report suspected illegal activity at work and are then retaliated against will hopefully no longer be further victimized in our courts. Rather, regardless of whether they sought to stand up for their own personal right to lawful treatment or to protect the public’s safety, hopefully they will be protected as the Michigan legislature intended. You can view the Michigan Supreme Court’s May 2013 decision in Whitman v. City of Burton here: scholar.google/scholar_case?case=10563196915968320874&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[2] Have you been fired because you reported suspected unlawful activity at work? If so, call an attorney today to discuss. There are several laws that protect whistleblowers whom are victims of retaliation but the deadlines to bring a legal claim are short. The Law Office of Marc Asch is now accepting new whistleblower clients.
Posted on: Wed, 30 Oct 2013 15:04:11 +0000