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When whistle-Blowing is involved, discharge reasons must be rock-Solid

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in Employment Law,Firing,FMLA Guidelines,Human Resources

The Michigan Whistleblowers’ Protection Act protects Michigan employees who report suspected wrongdoing to public authorities from retaliation. An employer that knows an employee has reported alleged wrongdoing must take special care when disciplining or discharging that employee.

Here’s why: Unless you have an absolutely legitimate business reason for your action, the timing makes the decision suspect and will most likely lead to a jury trial. And jurors—most of whom are workers themselves—will frequently side with employees unless you can convince them there is no connection between whistle-blowing and the discipline.

Recent case: Edie Taylor began working as a resident assistant at an adult foster care facility in Saginaw. She got a strong, positive 30-day progress report. The trouble started when she told her supervisors that one of the residents had a bed sore that wasn’t healing. Her complaints were ignored, so she contacted the Michigan Department of Social Services. An inspection followed.

Shortly after, administrators asked Taylor if she was the one who called Social Services. Taylor confessed. Suddenly, Taylor found herself with undesirable assignments.

When she asked for a one-week leave of absence to deal with health issues, it was approved. But since she wasn’t yet eligible for FMLA leave, she was terminated before her leave was up. The facility replaced her, ostensibly because it was short-staffed and couldn’t function without her.

Taylor sued, alleging she was terminated in retaliation for whistle-blowing. The court ordered a jury trial, calling the employer’s stated reason—staff shortages—“disingenuous.” (Taylor v. Alterra Healthcare Corporation, No. 06-13057, ED MI, 2007)

Final note: Because Taylor wasn’t eligible for FMLA leave, a better tactic would have been to deny her leave. If she took time off anyway, that would amount to job abandonment. But approving leave and then firing her was a poor strategic choice.

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