Regardless of the job, every employee has the right to work in a safe environment. That is not just wishful thinking but a law established by the Occupational Safety and Health Act of 1970, according to the United States Department of Labor. However, the law does not make companies immune to safety infractions. If an employee witnesses any type of health or safety or even workers’ compensation violation, they may be able to file an official whistleblower claim. If you have questions about making whistleblower claims in these situations, consider contacting an experienced Michigan workers’ comp attorney at Bruce L. Weider, PC, by calling (734) 485-0535 to schedule a consultation.
What Qualifies as a Whistleblower Complaint?
The term “whistleblower” has been in the news lately as it relates to someone in the government providing information to Congress. However, that is not the only type of whistleblower claim. Before contemplating filing a whistleblower complaint in Michigan, it is essential to review the qualifying criteria. A whistleblower under Michigan law is an employee who satisfies the following three key elements:
- They must lodge a complaint with a government agency or notify their employer of the intention to file a complaint
- The complaint must allege illegal conduct on the part of the employer
- The employer must be aware of the complaint
Filing the Complaint
Whistleblower claims should be filed with an official government agency like the Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), or the local police, according to the United States Department of Labor. In a privately held company, an internal complaint is not enough. However, if the employee filing the whistleblower claim works at a public agency, such as a police force or state university, the internal complaint will suffice. In other words, when an employee works for any type of government agency, filing an internal complaint is acceptable because it is a form of reporting to a governmental agency.
Alleging Illegal Conduct
The alleged conduct does not necessarily need to be conclusively deemed illegal. What matters is that the employee has the sincere belief that the reported conduct was unlawful at the time they file the complaint. The final adjudication from a court of law will determine the legality of the issue.
Notifying the Employer
For a whistleblower claim to be considered viable, the employer named in the complaint must have either actual awareness or constructive knowledge of the complaint. When the employer receives an EEOC notice or a copy of a police report, that constitutes actual awareness.
Constructive knowledge pertains to what the employer should have known after being informed of the issue. Once told about the basis of the complaint, the employer is obligated to investigate the issue.
What Is Actionable With a Whistleblower’s Complaint?
When an employer engages in some form of retaliation against the whistleblower, there could be an actionable complaint. Retaliation can come in the form of one of the following:
- Termination
- Demotion
- Pay reduction
- Rejection of an expected raise
- Unsubstantiated poor evaluations
- Threats of reporting a non-citizen employee to Immigration and Customs Enforcement
- Any other action that impacts an employee’s terms of employment
Whistleblower Complaints Do Not Give Employees Immunity
Filing a whistleblower claim does not grant immunity to the employee from all employer actions. The employer could still take action against the employee as long as the reason for the action is unrelated to the complaint. For instance, an employer could fire an employee who has filed a complaint about the lack of working plumbing for cause if that employee habitually comes in late or shirks responsibilities.
Whistleblowers Must File Violation Complaints Quickly
Michigan has a short statute of limitations for filing a civil action against an employer who violates the Whistleblowers’ Protection Act after the employee makes a whistleblower claim. The employee has just 90 days to file, beginning with the date of the first retaliatory action taken against the employee. An experienced attorney with Bruce L. Weider, PC, may be able to help evaluate whether an employer’s action qualifies as a violation under the Act.
Workers’ Compensation Violations
A whistleblower claim can be about more than issues with unsafe work environments. Employees can also make claims against their employers’ workers’ compensation violations. For example, a whistleblower may claim that a company has no workers’ compensation insurance in place. That would be a clear violation of state regulations. Another whistleblower may report a company that has misclassified employees or underreported payroll numbers as a way of cheating the workers’ compensation program.
Are Whistleblowers Entitled to Compensation?
According to the United States Department of Justice, the False Claims Act protects whistleblowers who report an incident of fraud on behalf of the United States government. That type of fraud could include abuses in the following areas:
- Disaster relief loans
- Overbilling
- Kickbacks
- False statements
- Improper healthcare coding
Settlements and judgments filed under the False Claims Act resulted in awards in excess of $2.2 billion in 2022. Under Michigan whistleblower law, the person filing the complaint may recover between 15% and 25% of the total amount recovered by the state. The whistleblower can pursue the matter independently if the state does not intervene and, in that scenario, may be entitled to anywhere between 25% and 30% of the amount recovered. An employee who discovers that an employer falsified documents to overbill a government contract could receive up to $250,000 if the overbilled amount exceeded $1 million. In the case of employer retaliation for a whistleblower complaint, the whistleblower could be entitled to the following:
- Reinstatement to the employee’s previous seniority status
- Two times the amount of back pay
- Interest on the back pay
- Compensation for any special damages sustained as a result of the retaliation
Whistleblower Claim Privacy Protections
Privacy protections are a concern for many whistleblowers. Under provisions in the False Claims Act, once an employee has retained an attorney and filed the whistleblower claim, the claim will be put under seal for 60 days. This time period will allow the government time to conduct an investigation to make a determination about whether to intervene in the matter. If the government opts not to pursue the matter, the complaint can still go forward as a civil action.
Speak With an Attorney Today
Making a whistleblower complaint is serious business. Whether the complaint is tied to the work environment or to a workers’ compensation issue, deciding whether to file can be an emotional challenge. The best way to approach potential whistleblower claims is to understand all the options applicable to the situation. To discuss the issue at the center of your complaint, consider contacting an experienced attorney with Bruce L. Weider, PC, by calling (734) 485-0535 to set up a consultation today.
