Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—Mich. Sup. Ct.: Claims of retaliation for making reports of putative common law violations are actionable in Michigan, (Apr 17, 2025)

By Nadine E. Roddy, J.D.

The common law is encompassed by the term “law” in the state Whistleblowers’ Protection Act (WPA).

The WPA protects reports of violations of the common law as well as statutory and regulatory law, the Michigan Supreme Court has ruled. Thus, summary disposition for the employer in a suit brought by a former employee who allegedly reported gross negligence by his supervisor was reversed (Stefanski v. Saginaw County 911 Communications Center Authority, No. 166663 (Mich. Sup. Ct. Apr. 14, 2025)).

Bungled emergency response. A 911 dispatcher brought suit against his former employer, a county 911 communications center, asserting a violation of the WPA in his constructive discharge from employment in retaliation for reporting his supervisor’s allegedly improper handling of an emergency call. On the night in question, the caller reported that she had heard three gunshots and that there was a woman yelling outside to call 911. The caller and someone in the background of the call said they believed the woman outside had been shot. The supervisor coded the call as “1010J,” meaning that shots had been fired. Under this code, however, emergency medical services are not dispatched to the scene. Unfortunately, a woman in fact had been shot, and when emergency services finally arrived after a second 911 call, she was in full cardiac arrest and never recovered.

The employee believed that his supervisor should have coded the call as “40J,” which would have indicated that someone had been shot and that emergency medical services were needed at the scene. He reported the matter to the center’s director, but the director did not question the supervisor’s exercise of discretion in coding the call. After some nonscheduled absences from work, the employee had another conversation with the director, explaining that he was having medical issues on account of his stress over the supervisor’s improper coding of the 911 call and the woman’s death. The employee then took medical leave, but when he missed shifts after his return-to-work date, he received a letter informing him that he was suspended pending a disciplinary hearing for nonscheduled absences. Believing this reason to be pretextual, the employee resigned and filed suit under the WPA, asserting that the supervisor had been grossly negligent.

The Michigan trial court granted summary disposition for the employer, holding that the employee had not engaged 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.” The court of appeals affirmed in an unpublished per curiam opinion.

Common law. Noting that courts must construe the WPA liberally to effectuate its purpose of protecting whistleblowers, the Michigan Supreme Court, sitting en banc, held that the term “law” as used in the statutory phrase “a violation or a suspected violation of a law” encompasses the common law. In the absence of a statutory definition of the term, the court consulted Black’s Law Dictionary, which includes the common law in the legal meaning of “law.” The court observed that the common law is a body of rules developed by the judiciary, which is controlling authority and has binding legal force.

‘A law.’ However, because the WPA requires an employee to report a violation of “a law” and not just a violation of law generally, a report of the latter is not protected by the statute. Resolving this issue in this case requires a determination of whether gross negligence is, in and of itself, “a law” that can be violated. Because this issue was not addressed by the court of appeals, it would be remanded to that court for resolution.

Report of violation. Further, to receive protection under the WPA, a plaintiff must show that they in fact made a report, or they must show by clear and convincing evidence that they were about to make a report. The statute does not protect employees who merely discuss reporting a violation without taking further action. Because the lower courts in this case did not reach the issue of whether the employee’s actions constituted a report, or otherwise demonstrated that he was about to make a report, this issue would be remanded as well.

For these reasons, the court reversed the court of appeals’ decision and remanded for consideration of whether gross negligence is a violation of “a” law and whether the employee’s conduct constituted a report under the WPA.

Dissent. Justice Zahra dissented, believing that the term “law” in the WPA does not encompass the common law. In the dissent’s view, “[t]he majority opinion distorts the statutory phrase ‘a violation or a suspected violation of a law’... by myopically focusing on generic dictionary definitions of the word ‘law.’”

The case is No. 166663.

Judge: Clement, E.

Attorneys: Kevin J. Kelly (The Mastromarco Firm) for James Stefanski. Laura S. Amtsbuechler (Rosati Schultz Joppich & Amtsbuechler) for Saginaw County 911 Communications Center Authority.

Companies: Saginaw County 911 Communications Center Authority

Cases: Whistleblowers Retaliation Discharge StateLawClaims MichiganNews