01 December 2023

Michigan’s Whistleblower Protection Act: Clarity Remains Elusive

The Michigan Supreme Court issued an Order in a long-running case involving the application of Michigan’s Whistleblower Protection Act (WPA) to an employee’s communication of information to her own private attorney.  The Court’s Order leaves significant legal issues unresolved and employers (as well as attorneys in private practice) with a lack of guidance on the WPA’s application.

The plaintiff employee was a nurse supervisor at a hospital.  The employee had a personal protection order against a family member arising out of a personal dispute.  The family member arrived at the hospital by ambulance and was admitted to the intensive care unit (ICU).  The family member then encountered the plaintiff while being wheeled to a procedure.  The plaintiff employee contacted her attorney, telling her attorney of the family member’s presence at the hospital and instructing the attorney not to act on the information.  The family member was subsequently served with the personal protection order while in the ICU.

The hospital terminated the employee pursuant to its patient-privacy and confidentiality standards after the employee improperly disclosed a patient’s presence at the hospital to her own private attorney in violation of HIPAA and hospital policy.  The employee filed a WPA claim, arguing that her attorney-client privileged communication constituted “reporting” a violation of law (i.e., the family member’s presence at the hospital) to a “public body.”

In a February 2022 unpublished decision, the Michigan Court of Appeals held that the plaintiff employee’s privileged communication with her attorney lacked the purposeful intent necessary to qualify as a report under the WPA.  The dissenting opinions to today’s Supreme Court Order criticize the Court of Appeals’ decision on several grounds.  However, the Supreme Court did not reach a consensus on whether (1) the WPA requires the plaintiff’s communication be to an individual with the authority to address the alleged violation of law; (2) the WPA requires that a plaintiff employee specifically intend to make a charge of a violation or suspected violation of law against another; (3) privileged communications between a client and his or her attorney can constitute a report under the WPA; and (4) practicing members of the State Bar of Michigan are members of a public body for purposes of receiving a report under the WPA.

Miller Johnson’s employment and labor attorneys routinely assist employers dealing with complex situations like the WPA issue presented in this case.  If you have questions about today’s decision, please contact the authors of this alert.