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Whistleblower Protected Even If He Is Blowing The Whistle To Protect Himself

By Daniel J. Bretz / May 13, 2013

Last week the Michigan Supreme Court issued Whitman v City of Burton a 5-0 decision (with new justices Mary McCormack and David Viviano not sitting). This case significantly changes the way lower courts have analyzed claims brought by employees claiming retaliation under the Michigan Whistleblowers' Protection Act (WPA).

In Whitman , the Court clarified its 16 year old decision in Shallal v Catholic Social Services of Wayne County , 455 Mich 604 (1997). Shallal suggested that an employee was not protected under the WPA where the employee's primary motivation in reporting a suspected violation of the law was not to inform or protect the public, but rather was for personal gain or vindictiveness. Since Shallal was decided, many lower courts have held that a whistleblower must act in good faith, with a purpose to inform or protect the public, and not for personal motives such as to avoid discipline, exact retribution against a supervisor, or avoid personal liability.

In Whitman , the Court held that the WPA makes no mention of an employee's motivation or purpose for reporting suspected violations of law. The Court held that "there is no 'primary motivation' or 'desire to inform' requirement within the WPA." The Court suggested that the motivation discussion in Shallal was mere dicta (i.e., not essential to the Court's holding and therefore not binding in subsequent cases as legal precedent). The Court went on to state that "to the extent that Shallal has been interpreted to mandate a specific motive, any language to that effect is disavowed as dicta unrelated to the essential holding of the case."

Practice Pointer. The decision in Burton will affect the way employers analyze WPA cases and termination decisions. The decision effectively makes it irrelevant whether the employee is blowing the whistle simply to insulate himself from discipline, or to retaliate against a supervisor. In other words, an employee still is engaging in protected activity if his sole motive in reporting a suspected violation of law is to shield himself from further disciplinary action. Employers can still defend WPA claims by ensuring that they have a legitimate reason for disciplining or discharging an employee, unrelated to any reporting activity under the WPA.

If you have any questions please contact Daniel J. Bretz, (313) 965-8356, dbretz@clarkhill.com or another Clark Hill labor or employment attorney.