Michigan employers may not “discharge an employee or in any manner discriminate against an employee because the employee files a complaint” under the state’s safety and health law. An employee that may have suffered an adverse employment action against them because of involvement in a safety complaint may bring a complaint to the Michigan Department of Labor and Economic Opportunity within thirty (30) days after the violation. This will lead to a MIOSHA investigation and relief from that violation including reinstatement.
In July, Michigan’s Supreme Court handed down a ruling in the case of Cleveland Stegall v. Resource Technology Corp. (2024) that took a complaint of retaliation brought against the employer and further expanded Michigan’s anti-retaliation remedies that employers may face under the law.
In the case at hand the Plaintiff had asked its employer to check for asbestos in the air at work. The employer did so but did not provide the results to the employee despite two requests. Two months went by, and the employer ceased operations on its second shift and subsequently terminated the Plaintiff. Plaintiff then brought a lawsuit against the employer based upon a violation of public policy.
Both lower Courts held the public policy claim was pre-empted by both federal and state safety and health law.
The Michigan Supreme Court engaged in a somewhat twisted analysis of Michigan OSHA’s anti-retaliation term and a 1993 case (Dudewicz v. Norris Schmid Inc.) that both lower Courts relied upon. In a 4-3 decision, they found no public policy claim could be made in this case.
Leaving the high Court’s rationale to the lawyers to fathom, the Michigan Supreme Court used this case to expand causes of action for retaliatory discharge in Michigan. Further, this case appears to open up the use of Michigan’s Whistleblower Protection Act (WPA) without as much fear of losing due to a preemption argument. In their LAW 360 Employment Authority Expert Analysis article on this ruling authors Aaron Burrel and Timothy Howlett point out remedies under the Whistleblower Protection Act are different than those under OSHA and MIOSHA. They state that under the WPA that law’s 90-day statute of limitations may now be argued an inadequate remedy, and a court would have to overturn clear language in the WPA to allow for a public policy claim from this decision to go forward.
Michigan employees now have a broader pathway to claim retaliatory adverse action against them by an employer if they recently engaged in a safety and health complaint against their employer. Employers should know, as with termination of an employee that had been somehow engaged in other employment discrimination actions, they should now carefully consider adverse employment action against an employee who has recently made or been involved in a workplace safety situation.
Source: LAW360 Employment Authority. Mich. Whistleblower Ruling Expands Retaliation Remedies. (9/17/2024)