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Employee of Private Company Cannot Be a “Public Body” Pursuant to Whistleblowers’ Protection Act

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Timothy P. Burkhard
Foster Swift Employment, Labor & Benefits Quarterly
Spring 2011

In a recent unpublished decision, the Michigan Court of Appeals upheld a decision of a trial court which found that a plaintiff’s claim that she was demoted in violation of the Whistleblowers’ Protection Act (WPA) failed because she did not make any complaints or reports to a government agency, nor did she tell her employer she was about to make a complaint to a government agency.

The WPA makes it illegal for an employer to discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee reports or is about to report a violation or a suspected violation of a law or regulation to a public body. (See MCL 15.362.) Plaintiff claimed that her demotion, that ultimately led her to resign, was in retaliation for her reporting her concerns about data validation for information which ultimately was provided to the Michigan Department of Environmental Quality.

In order to succeed on her WPA claim, plaintiff was required to prove she reported a violation or suspected a violation of a law or regulation to a public body. Although admitting she never complained to a government agency or told anyone at her employer she was about to complain to a government agency, plaintiff alleged that her reports within her company to an individual she described as her employer’s "compliance officer" were tantamount to reporting to a "public body" under the WPA. The trial court granted judgment in favor of the employer, and the Court of Appeals affirmed the trial court’s decision.

In affirming the trial court’s decision, the Court of Appeals expressly noted that "[t]here is no provision within the plain language of the statutory definition of ‘public body’ that includes employees of private companies." Although this decision is not a major surprise given the plain language of the statute, it is important that the Court of Appeals was unwilling to allow the expansive interpretation advanced by the plaintiff. If such an expansive interpretation had been allowed, it would have opened the door for employees to advance WPA claims for internal complaints.

If you have any questions, please contact Timothy Burkhard at 248.785.4729.