Employee’s Discussions with Attorney May Give Rise to Whistleblowers’ Claim
Posted by chapteradmin on Dec. 1, 2021 / Legal Updates / Subscribe 0
By: Carol G. Schley, Clark Hill PLC
A recent Michigan case involving a claim under the Michigan Whistleblowers’ Protection Act (“WPA”) is most interesting for an issue that the Michigan Supreme Court refused to decide.
In Rivera v. SVRC Industries, Inc., Linda Rivera, the director of industrial operations for SVRC, conducted a disciplinary meeting with an employee identified as “LS.” During this meeting, LS made several statements that Ms. Rivera perceived as threatening. She reported the statements to SVRC’s Chief Operating Officer, who ultimately told Ms. Rivera not to file a police report on SVRC’s behalf. SVRC also asked its attorney to investigate the incident. During the investigation, the attorney spoke with Ms. Rivera and others, and LS’s employment with SVRC was subsequently terminated.
Shortly thereafter, SVRC permanently laid off Ms. Rivera for “budgetary and economic reasons.” Ms. Rivera filed a lawsuit against SVRC asserting unlawful termination under the WPA. As grounds for her claim, Ms. Rivera asserted that her discussions with the company attorney were protected by the WPA, because the attorney was a member of the State Bar of Michigan (“SBM”) and, therefore, the discussions constituted a “report” of a suspected violation of law to a member of a “public body” as required by the WPA.
The trial court agreed with Ms. Rivera. However, on appeal, the Michigan Court of Appeals held that while the company attorney was a member of a “public body,” her discussions with the attorney were not a “report” of a violation of law, since she did not “on [her] own initiative, take []it upon [herself] to communicate the employer’s wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light… Rather, plaintiff spoke with [the attorney] at defendant’s request.” Further, the court held that “the information that plaintiff conveyed to [the attorney] was the same as that which she had already directly communicated to defendant, and the information was already known to [the attorney]….” The Court of Appeals concluded that Ms. Rivera did not make a “report” as defined under the WPA, and that the employer should have been granted summary disposition on the WPA claim.
Ms. Rivera filed an application for leave to appeal to the Michigan Supreme Court, which agreed to hear her case. On appeal, the Supreme Court had the opportunity to provide clarity on the issue of whether an employee can assert a WPA on the basis of speaking to any attorney who is a member of the SBM. However, the Supreme Court declined to address this issue, and instead affirmed the decision regarding Ms. Rivera’s WPA claim on other grounds.
In a separate opinion, Justice Viviano concurred with the holding of the Court, but expressed concerns regarding whether discussions with an attorney can give rise to a WPA claim merely because the attorney is a member of the SBM. Justice Viviano noted that if every attorney who is a member of the SBM is deemed a member of a “public body,” “an employee would gain protections of the WPA by reporting or being about to report a suspected violation of law to any licensed attorney in the state - even if that employee had no prior relationship with that attorney.” Justice Viviano urged the court to “closely consider” in a future case, “whether the relevant meaning of ‘member’ as used in the WPA is narrower… such that it only includes members of the SBM with some decision-making authority regarding that body, but excludes the licensed lawyer who has no role in the SBM other than simply paying his or her dues to be a nominal member.”
The upshot of the Rivera case is that there are expansive grounds for an employee to allege a WPA claim against their employer based upon discussions that employee had with an attorney who is a member of the SBM. Of course, other elements of the WPA would still need to be met for the employee to prevail on the claim, including the requirement that the employee “report” a violation or suspected violation of the law to the attorney, and that adverse action was taken by the employer against the employee because of the “report.” Nevertheless, since discussions with an attorney who is a member of the SBM can potentially trigger a WPA claim, an employer must be careful when taking adverse action against any employee who the employer knows had regular or recent contact with an attorney (including the employer’s attorney). When such circumstances are present, the employer should consult with legal counsel on the best course of action before any employment decisions are made.
Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC. She can be reached at [email protected] or (248)530-6338.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. December 2021
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