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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Employees looking for job security under the Whistleblowers’ Protection Act (WPA) will have to look elsewhere if they report a suspected future violation but have no reason to suspect an existing or past violation has occurred, according to the Michigan Supreme Court in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20160201_S151374_51_01_Pace-OP.pdf" target="_blank" rel="noopener"><em>Pace v. Edel-Harrelson</em>, No. 151374</a>.  According to the court, such reports fail to qualify as “protected activity” under the WPA.  It remanded to the Court of Appeals, however, for consideration of the plaintiff’s claim that the discharge violated public policy, explaining that because the WPA does not apply, it does not preempt the public policy claim.  To read our previous post about the Court of Appeals decision, click <a href="https://www.wnj.com/updates/coa-finds-that-suspicion-of-future-violation-of-law-suffices-in-whistle-blower-claims" target="_blank" rel="noreferrer noopener">here</a>.

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Barbara Pace, an employee of SIREN Eaton Shelter, Inc. claimed she was wrongfully terminated by her employer after informing two of her supervisors that the operations manager, Christy Long, was planning to purchase a stove for personal use with grant funds.&nbsp; Pace reported Long’s intentions in December 2011 or early 2012 and she was terminated on January 18, 2012.&nbsp; SIREN claimed it terminated Pace for unrelated misconduct, specifically, an incident in January 2012 that resulted in Pace exhibiting harassing and intimidating behavior toward another employee.&nbsp; Although Pace denied that she engaged in any physically intimidating behavior, her termination letter stated she “engaged in behavior that resulted in fear and intimidation in coworkers, and which was witnessed by three employees.”

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Pace brought suit against SIREN, alleging it violated the WPA, which provides protection to an employee who reports “a violation or a suspected violation of law” to a public body.&nbsp; SIREN moved for summary judgement and it was granted.&nbsp; The circuit court ruled that Pace failed to establish that a violation or suspected violation of law occurred.&nbsp; Pace appealed, and the Court of Appeals reversed the circuit court’s decision, concluding that Pace presented sufficient evidence to establish a genuine issue of material fact that she had engaged in “protected activity” and that alleged protected activity was casually connected to her subsequent termination.&nbsp; SIREN filed an application for leave to appeal to the Michigan Supreme Court.

In lieu of granting leave to appeal, the Supreme Court summarily reversed the Court of Appeals.&nbsp; The Supreme Court reasoned that the WPA contains no language indicating that future, planned, or anticipated acts are within the scope, and consequently, a stated intention to commit an act amounting to a violation of a law in the future does not constitute “a violation or a suspected violation of law” for WPA purposes.&nbsp; Since Pace reported a suspected future violation of a law—Long’s intention to purchase a stove with unauthorized grant funds—and not a suspected existing violation, Pace did not engage in “protected activity” for purposes of the WPA.

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Gaëtan Gerville-Réache

Labor and Employment

Whistleblower Protection Act will not protect a worker fired for reporting suspected future violations (but public policy might)

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Whistleblower Protection Act will not protect a worker fired for reporting suspected future violations (but public policy might)

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