Monday, June 28, 2010

Whistleblower protection and semantics: "Suspected"

On June 3, the Michigan Supreme Court reversed and remanded an unpublished opinion of a court of appeal's panel in lieu of granting leave to appeal.  The lower court was instructed to review the issue of causation raised by the defendants but not addressed in the opinion during the court's initial review when it held that the plaintiff had not engaged in protected activity under the Whistleblowers Protection Act. DeBano-Griffin v. Lake County, SC: 140400(6/3/10).

The Supreme Court focused on the specific facts of the case in finding that the plaintiff had engaged in activity which was protected in the context of plaintiff's concerns that ambulance  funds were being used for purposes other than stated on the ballot, which would be a "suspected" violation of an actual law.  The Court stated that using funds for a purpose other than stated in a ballot would violate the law and cited its opinion in South Haven v. Van Buren Township, 478 Mich 518(2007).  The Court stated that it was unnecessary to address whether the reporting of a suspected violation of a suspected law constitutes protected activity.

For employers, an interpretation that a belief by an employee that an employer may have engaged in conduct that the employee believes or suspects may be illegal even if wrong  broadens the coverage of the act raises a terrifying prospect and gives new meaning to the phrase, "There outta be a law..."  To fully appreciate appreciate this issue, one needs to review the three separate opinions in the 2-1 decision.  DeBano-Griffin v. Lake County, No. 28291(unpublished)(10/15/09).

The plaintiff was the director of the 911 department and was concerned that ambulance funds which had been approved pursuant to a ballot initiative were being used for other purposes.  She had brought the transfer of funds issue to a committee which oversaw the 911 operations and had told the board of commissioners she had done so.  Ultimately, her position was combined with another, and she was laid off.  The reason given for the action was to save money.  The suit under the Whistleblowers Protection Act followed.

The defendants filed a motion for partial summary judgment on the grounds that plaintiff had not engaged in protected activity.  The trial court denied the motion, and the defendants appealed.  In a 2-1 decision with three opinions, the court reversed.  The majority held that plaintiff had only a subjective belief that the activities violated unspecified governing rules, and because she could not identify what law, rule,or regulation had been violated by the movement of funds, she failed to establish the prima facie elements of a claim.

The lead opinion focused on the language of the statute and, in particular, the fact that the word "suspected" refers to the word "violation" and not to "law."  A contrary interpretation regarding a suspected violation of a suspected law "unduly expands" the parameters of the act.  The purpose of the act is to protect the public, and the public does not benefit from giving protection to those who report or are about to report activities that they subjectively believe violate non-existent laws, rules, or regulations.

The concurrence stated that in order to engage in protected activity, an employee must be about to report or to report an actual or suspected violation of a law that actually and contemporaneously  exists. It is not enough for an employee to suspect that a law exists or hope that such a law exists or to believe that such a law exists.

The dissent stated that " a suspected violation" refers to what an employee suspects.  The natural reading is that the legislature intentionally extended protection based on the employee's subjective belief about both the relevant facts and law.  According to the dissent, an employee is still protected even if mistaken about whether activity actually violated a law or rule.  An employee would be protected even if it turns out that the employee was mistaken about whether there was a promulgated law, rule, or regulation that applied to the facts which were reported.

Apparently, the plaintiff was fortunate in that the Supreme Court found a "law" that could be the basis of a claim.  The open issue that the court of appeals is to address is one of causation. The issue of whether an employee's belief in the existence of a law which may not exist may be the basis of a claim is left for another day.  If, however, the purpose of the statute is to protect public, it would seem that public is to be protected from the violation of a real, instead of imagined, law, rule, or regulation.

Thursday, June 17, 2010

A teacher's worst nightmare

It seems that there is becoming a new maxim in employment law:  the more embarrassing or inappropriate an employee's off duty conduct is, the more likely it will appear on the internet.  Such is the case in an unpublished decision of the Michigan Court of Appeals in Land v. L'Anse Creuse Public School Board, No.  288612(5/27/10) where a teacher had been terminated for her off duty conduct.

The incident which led to the termination occurred in the summer of 2005 at a rather notorious event in the metro Detroit area--the annual Jobbie Nooner gathering of boats around Gull Island in Lake St. Clair.  Photos were taken of the teacher performing a simulated sex act with a male mannequin during a combined bachelor/bachelorette party.  The pictures were taken without the teacher's knowledge and posted on the internet without her consent. In the fall of 2007, rumors of the pictures existence circulated at school, and some students gained access to them.  At the teacher's request, the pictures were removed.

In October of 2007, the school board voted to adopt the superintendent's recommendation that the teacher be terminated for engaging in behavior contrary to the moral values of the educational and school community.  The teacher was tenured, and a hearing was held before an administrative law judge. The judge ruled that the charges had been proven and that was just cause to terminate the teacher.  The teacher filed exceptions with the state tenure commission.

The commission reversed the judge and ordered the teacher's reinstatement.  The commission found that the conduct had occurred two years before she was suspended; was not illegal; occurred off school grounds; did not involve any school activity; and was not associated with her duties as a teacher.  The commission noted that the conduct had occurred in  the context of a bachelor/bachelorette party and further noted that there was no reasonable expectation that children might be present.  The commission concluded that absent misconduct, the consideration of negative publicity surrounding a teacher's behavior would be contrary to the Teacher's Tenure Act.  While it was unfortunate that students gained access to the photographs, the commission disavowed  any suggestion that negative publicity alone can provide just cause for termination, absent a showing of professional misconduct.

The school district appealed the commission's decision.  The board challenged the finding that the teacher did not engage in professional misconduct.  The court upheld the commission's findings.  The court held that there are no Michigan decisions holding that a teacher's legal, off-duty, off-premises conduct not involving students constitutes professional misconduct which renders a teacher unfit to teach. The court noted that the conduct lasted three seconds; that photographs were taken and posted without the teacher's permission; and that they were removed.  The court also noted that there was overwhelming evidence that the teacher was excellent and went above and beyond her responsibilities to assist her students.

Does this decision have any application in the private sector? Not really. The fact that the teacher had tenure and access to the tenure review procedure literally saved her job.   If an employee is at will, an employer can terminate the employee as a result of negative publicity arising from the employee's off duty conduct.  The lesson to be learned for employees is that with today's social media, the concept of "what happens in Vegas, stays in Vegas" is no longer valid.  The new reality is that what happened last night will be on the internet in the morning.

Tuesday, June 8, 2010

Statute of limitations and whistleblowing: A matter of semantics

The statute of limitations for a claim under Michigan's whistleblower protection act requires the filing of an action within ninety days after the occurrence of the alleged violation of the act.  In Mortimer v. Alpena County Probate Court, # 290958(5/25/10)(unpublished), a panel of the Court of Appeals addressed the differences between a suspension and a termination and the impact on the running of the ninety day period.

The claim which was brought under the whistleblower's act was dismissed by the circuit court as untimely.  The plaintiff was terminated for challenging the judges' practice of appointing "standby guardians" in adult guardian proceedings which she claimed was a violation of state law.  The plaintiff was suspended with pay on May 19, 2008 and never returned to work.  She was told she was no longer the probate register and was given to June 9, 2008 to sign a departure agreement.  The date was extended to June 23, and the deadline passed without the plaintiff's acceptance.  The court told her in a letter dated June 23 that she was terminated effective June 21.

The court reversed the dismissal.  Plaintiff had been told she was suspended but had not been told she was terminated.  The court stated that "suspended" does not equate with "terminated" or "discharged."  The court stated that action short of discharge had occurred,  and as a result, it cannot be said that the last day worked represented the the date of discharge.  The court distinguished the decision in Parker v. Cadillac Gauge Textron, 214 Mich. App. 288(Mich App 1995) where, in the context of a reduction in force, the last day worked was December 21, 1990 and the date of separation was January 7, 1991.  In that case, the court stated that the last day worked was the date of discharge.

The court concluded that the plaintiffs in Parker knew on their last day of work that they had  been terminated while the plaintiff did not and had not.  As a result, her claim accrued on June 21, 2008, the effective date of her termination, and her action was filed within ninety days.

Employers can no longer rely on the "last day of work" as triggering the running of the statute.  The impact is f important in those cases where an employee's last day of work is not clearly identified as the date of termination.  For example, an employee who is being laid off and who is told to no longer report to work but that the employee will be kept on the payroll until the end of the month.  Under Mortimer, the date of termination for the purposes of the running of the statute is the end of the month.  Semantics can be very significant when the statute of limitations is short as in a whistleblower claim. Employers need to say what they  intend.