THE COURT OF APPEALS DRASTICALLY EXPANDS THE SCOPE OF THE WPA
By: Warren Krueger
A recent Court of Appeals’ interpretation of the Michigan Whistleblowers’ Protection Act (WPA) has significant ramifications for attorneys. In McNeil-Marks v MidMichigan Medical Center-Gratiot, ___ Mich App ___; ___ NW2d ___ (2016)(Docket No. 326606), a published opinion of the Court of Appeals, the Court concluded that attorneys are members of a public body for WPA purposes, regardless of whether they are in public or private practice. Not only does this mean an employee may qualify for WPA protection by simply being about to call an attorney for legal advice, but it may prevent an employer from involving its attorney in certain parts of an internal investigation, or risk facing WPA claims. Every attorney who represents an employer or employee, has a client that has employees, or merely has employees him or herself, is affected by this decision.
The WPA protects employees from employer retaliation for reporting or being about to report a suspected violation of the law to a public body. To establish a WPA claim, an employee must show: 1) that she engaged in a protected activity; 2) that an adverse employment action was taken against her; and 3) a nexus between the two. The Court of Appeals’ decision has seemingly expanded the scope of conduct that meets element one of that test.
An employee engages in a “protected activity” under any of the following circumstances: by reporting or being about to report a violation or suspected violation of a law, rule, or regulation to a public body, or by participating in an investigation held by a public body or a court action. The McNeil ruling expands the interpretation of “public body.”
“Public body” is a term defined by the WPA. The definition tracks with common sense by including government entities, employees, etc. But it also includes “[a]ny other body …created by state authority … or any member or employee of that body.” The Court reasoned that the State Bar of Michigan (SBM) is a body created under state statute, and all attorneys are required to be members. Since the SBM is a body created by state authority, and attorneys are members of that “public body,” the Court determined that all attorneys individually fall within the statutory definition of “public body.”
As mentioned above, that ruling has many ramifications. First, and most obvious, is the expansion of the WPA to cover activities that would not obviously be considered reporting to a public body. Second is the implication of the logic – i.e., who or what else is considered a public body under the WPA? Is anyone who is required to be, or simply chooses to be, a member of a state created body now a “public body” themselves, for WPA purposes?
Preposterous results can be contemplated. For example, complaining to a janitor at the local community college about an employment condition would constitute reporting to a public body. Certainly, there is no shortage of far-fetched hypotheticals one could think of, but a more practical issue is how attorneys are affected in their representation of clients who are also employers.
As noted, if an employer engages an attorney to investigate an internal employment issue, or any internal issue for that matter, a WPA claim may arise. If the attorney speaks with an employee, and that employee is subsequently terminated from employment based on the investigation, the employee may have a WPA claim simply because she “reported” to a public body by speaking with the employer’s counsel.
That scenario may also give rise to a malpractice risk. An attorney practicing employment law would be presumed to know the Court’s interpretation of the WPA, and the risk that his or her involvement in a client’s internal issue, where there is communication between an employee and the attorney, may give rise to WPA claims against the client. As a result, failure to advise a client of that risk prior to undertaking representation may create malpractice liability. Of course, there is an issue affecting all attorneys that have employees: their own employees have reported to a public body for WPA purposes if they report a violation or suspected violation of law to the attorney-employer.
An application for leave to appeal to the Michigan Supreme Court has been filed in the McNeil case, and remains pending at Docket No. 154159. On January 24, 2017, the Supreme Court issued an order directing the Court Clerk to schedule oral argument on whether to grant the application, and requested supplemental briefs on the issue of whether communication with an attorney constitutes a report to a public body that is protected under the WPA.
Warren Krueger is an associate attorney at Loomis, Ewert, Parsley, Davis & Gotting, P.C. He practices employment law, and is co-chair of the Ingham County Bar Association – Employment and Labor Law Section.