The Michigan Whistleblowers’ Protection Act (“WPA”), Mich. Comp. Laws § 15.361-369 (2017), was enacted in 1980. The WPA protects employees, or agents acting on behalf of an employee, who report or are about to report violations of state, local, or federal law to any public body, from retaliation by their employers, unless the employee knows that the report is false.[i]
The WPA provides remedies for employees who suffer retaliation, such as demotion or discharge, for reporting or planning to report legal violations. Employers who retaliate also face a civil penalty under the WPA.
Employees are specifically protected from employer retaliation for reporting Medicaid fraud under the Michigan Medicaid False Claims Act. Berger Montague’s Qui Tam Practice Group has filed dozens of cases under the Michigan FCA on behalf of its qui tam whistleblower clients.
In addition to protecting employees from retaliation in connection with reporting violations of the Michigan FCA, the WPA covers employees who report other types of lawbreaking. The WPA also protects employees from retaliatory actions taken by employers before the employee reports the violation.
Civil Actions, Remedies, and Penalties
Employees may bring a civil lawsuit for injunctive relief, actual damages, or both within 90 days from the alleged WPA violation.[ii] If the lawsuit is based on the employee’s claim that the retaliation occurred because the employee was about to report a legal violation, then the employee must prove by clear and convincing evidence that the employee or someone acting on the employee’s behalf was about to report the violation.[iii]
Courts may award any combination of the following as remedies to the employee: reinstatement of the employee, payment of back wages, full reinstatement of fringe benefits and seniority rights, and actual damages.[iv] Courts may also award all or a portion of the litigation costs to the employee.[v]
The WPA Does Not Protect Employees Who Report Future Violations of Law
In Pace v. Edel-Harrelson, the Michigan Supreme Court held that the WPA only protects employees from retaliation for reporting or planning to report past or present violations of law, not anticipated or planned violations.[viii]
In that case, an employee at a nonprofit agency alleged that her employer violated the WPA by terminating her employment after she reported to the nonprofit’s executive director that another employee intended to use grant funds to purchase a stove.[ix] The Court held that the employee did not engage in “protected activity” for the purposes of the WPA because she reported a future legal violation.[x] The Court reasoned that the plain meaning of “violation or suspected violation” in the WPA only covers “accomplished or ongoing” acts.[xi]
Even though employees are not protected from employer retaliation for reporting planned or anticipated legal violations under the WPA, Michigan courts may still protect those whistleblowers on public policy grounds.[xii]
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[i] Mich. Comp. Laws § 15.362 (2017).
[ii] Id. § 15.363.
[iv] Id. § 15.364.
[vi] Id. § 15.365.
[viii] 878 N.W.2d 784, 785, 788 (Mich. 2016).
[ix] Id. at 785-86.
[x] Id. at 788.
[xi] Id. at 788-89.
[xii] See https://www.fosterswift.com/communications-Whistleblower-Protection-Act-Employee-Protection.html.