Whistleblower Protections Apply To Alleged Common Law Violations, Not Just Statutes and Regulations, Michigan Supreme Court Says

Michigan’s Whistleblowers’ Protection Act (WPA) prohibits an employer from taking adverse employment actions against an employee who reports or is about to report a violation or suspected violation of the law or for participating in an investigation, hearing, inquiry, or court action regarding such alleged transgressions. In a recent decision, the Michigan Supreme Court made clear that the WPA’s robust employee protections extend not only to allegations that a statutory law or regulation was violated but also to claims relating to common law breaches.

Stefanski v. Saginaw County 911 Communications Center Authority involved a 911 dispatcher, Stefanski, who alleged that his supervisor botched a response to a call, which Stefanski claims ultimately lead to the death of an individual who was reported as shot. Stefanski reported his concerns to another supervisor, asserting that the acts and omissions relating to the call constituted “gross negligence” under Michigan law. Stefanski, however, did not cite any specific statute or regulation he believed had been violated.

Stefanski was later suspended for what he believed were pretextual reasons. He subsequently resigned and sued his employer for violations of the WPA, claiming the adverse employment actions taken against him were retaliation for reporting the gross negligence involved in the mishandled 911 call. The defendant, Saginaw County 911 Communications Center Authority, moved for summary disposition on Stefanski’s WPA claims, arguing that Stefanski did not engage in an activity protected by the WPA because gross negligence is not “a violation of a law or regulation or rule promulgated pursuant to law” as defined in the WPA. The trial court agreed with the defendant and granted the motion. The Court of Appeals affirmed, also on the grounds that allegations of common law violations do not trigger the WPA’s protections.

The Plain Meaning of “Law” Includes “Common Law”

The Michigan Supreme Court, however, reversed the appellate court and remanded the case back to the appellate court. In its 6-1 decision, written by Chief Justice Elizabeth Clement, the Court concluded “that the term ‘law’ as used in the statutory phrase ‘a violation or a suspected violation of a law’ encompasses the common law.”

Noting that the WPA did not define “law,” the Court looked to principles of statutory construction, which involves ascertaining an undefined term’s “plain meaning.”

“We conclude that ‘law,’ when given its plain meaning as found in a lay dictionary, includes the common law,” the Court wrote. The statute “does not say ‘statutory law’ or ‘constitutional law’; it merely states ‘a law.’” Given its mandate “to liberally construe the WPA,” the Court decided that excluding common law violations would improperly restrict the act’s remedial purposes.

To Qualify for WPA Protections, an Alleged Violation of the Common Law Must Be an Alleged Violation of a Common Law.

Though the Court held that the common law is included in the term “law,” it remanded the case back to the Court of Appeals for it to determine whether Stefanski’s claim of “gross negligence” was specific enough to qualify for the WPA’s protections.

“Because an employee must report a violation of ‘a’ law and not just a violation of law, a plaintiff may not simply report a violation of law generally,” the Court said. “Although the common law falls under the definition of ‘law,’ to receive the WPA’s protections, a plaintiff must show that the reported violation was, in fact, a violation of ‘a’ law. Accordingly, resolving this issue requires the Court to determine whether gross negligence is, in and of itself, ‘a’ law that can be, and was, violated.”

In a lengthy dissent, Justice Brian Zahra argued that the majority opinion “runs afoul of two applicable canons of statutory construction: the surplusage canon and the associated-words canon” and therefore distorts the statutory phase in the WPA “a violation or a suspected violation of a law.” Under the surplusage canon, “the majority’s definition of ‘law’ is so broad that the entire remaining phase, ‘regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the Unites States,’ becomes unnecessary and dead letter.”

Under the associated-words canon, words in a statute “should be read together to harmonize the meaning, giving effect to the act as a whole” and that “words grouped in a list should be given related meanings.” The majority’s definition of “law” violates the associated-words canon because the remainder of the statutory language under the WPA includes only “written law” and not common law which is “unwritten law.”

While the decision in Stefanski means that a broader range of alleged legal transgressions can be the subject of an employee’s protected whistleblowing activities, any allegations involving the common law must cite a specific tenet of the common law rather than general claims that the common law was violated.

If you have questions about this decision or about Michigan whistleblower rights generally, please contact Jordan Held at Kreis Enderle.