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Just What is a “Whistleblower?” Probably Not What You Think.

As an employment discrimination lawyer, I am frequently contacted by people who have made an internal company complaint of unethical or even illegal activity by co-workers or supervisors, and are then terminated from their employment.  These folks believe that they are whistleblowers.  But, are they?  Sometimes.

The Michigan Whistleblowers’ Protection Act prohibits an employer from terminating or otherwise discriminating against an employee because the employee made a report (or was about to make a report) of an actual or suspected violation of the law to a “public body.”  Under the Whistleblowers’ Protection Act, a “public body” includes only governmental entities or other bodies created by governmental entities.  The list is long, but examples include the police, the courts, local municipalities, county officials, and state agencies.  Internal reports to the employer are not covered by the Act, unless the employee works for a “public body” such as a police department, a state agency, or a court.

Interestingly, the Act does cover and provide protection for reports of actual or suspected illegal acts committed by anyone, and not merely reports of illegality or suspected illegality committed by the employer.  Thus, if a store employee reports suspected shoplifting by a customer to the police, the employer cannot terminate or otherwise discriminate against that employee for making that report.  Or, if an employee reports that a low-level co-worker violated a law to a state agency or a police department, the employer cannot terminate or otherwise discriminate against that employee for making the report.  Likewise, an employer cannot terminate an employee because she reported to the police that a personal acquaintance committed a crime, and that acquaintance happens to be a friend or relative of the employer.

The Whistleblowers’ Protection Act also protects employees who are “requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.”  Under this provision, an employer cannot terminate or otherwise discriminate against an employee who is asked or subpoenaed to provide testimony in a hearing held by a public body, and provides testimony that the employer does not like.  So, if an employee is requested to give testimony in a deposition or a trial, the employer generally cannot terminate or discriminate against that employee because of the testimony.  And, it does not matter if the employer is a party to the case.

There are some additional situations in which an internal complaint can be protected, but by a different law.  By way of example, the Federal False Claims Act affords whistleblower protection to employees who make internal complaints about actual or suspected fraud involving programs receiving federal funding.  One such scenario occurs when an employee of a healthcare facility internally complains of suspected Medicare or Medicaid fraud.  The employer cannot terminate or otherwise discriminate against that employee because the employee raised that complaint.  Also, the statutes prohibiting discrimination on the basis of race, sex, religion, disability and age all protect an employee from retaliation for objecting to, or making internal complaints about discrimination on the basis of these protected characteristics.  Other laws, such as the Family & Medical Leave Act and the Fair Labor Standards Act contain similar protections.

If you believe that you are a whistleblower, or if you are considering blowing the whistle, you should immediately contact an employment discrimination lawyer — meaning one who actually concentrates his or her practice on handling employment discrimination cases.  Not someone who merely dabbles in it.

We hope you found this update to be helpful.  Please do not hesitate to contact us should you have any questions.


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Joey S. Niskar
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