The Michigan Supreme Court Leaves Appellate Decision Intact: Employee’s Report to Her Attorney of a Good Faith Belief that Her Employer Violated Law is Protected Under Michigan’s Whistleblower Act

On April 20, 2017, I wrote a blog about an oral argument at the Michigan Supreme Court that occurred on April 12, 2017, in the case of McNeil-Marks v MidMichigan Medical Center-Gratiot (“MidMichigan”). In MidMichigan, the Court of Appeals expanded the definition of a member of a “public body” under the Whistleblowers’ Protection Action (“WPA”), to include Michigan licensed attorneys.

Following oral argument on April 12, 2017, the Michigan Supreme Court directed the parties to file supplemental briefs. 

On June 15, 2018, the Michigan Supreme Court, in a three to two decision (two justices did not participate in the ruling), issued an Order regarding Defendant MidMichigan’s application for leave to appeal the Court of Appeals’ decision. After the Michigan Supreme Court’s consideration of the supplemental briefs, it denied MidMichigan’s request for application for leave to appeal, stating it was “not persuaded that the questions presented [in the application for leave] should be reviewed by this Court.”

Justice Zahra, joined by Chief Justice Markman, filed a lengthy dissenting opinion, concluding that the plaintiff employee’s communication with her “private attorney” did not constitute ‘reporting’ to a public body under the WPA. The dissenters would have reversed the Court of Appeals’ decision and sent the case back to the Court of Appeals to consider the merits of the case based upon Plaintiff’s alternative claim of termination against public policy.

However, based upon the Michigan Supreme Court’s Order, the Court of Appeals’ decision remains intact and the WPA will continue to provide employees protection under the WPA, if they report or threaten to report to their attorneys a good faith belief that their employer violated the law.