In Pace v. Edel-Harrelson, No. 151374 (Mich. S. Ct. Feb. 1, 2016), the Michigan Supreme Court held that Michigan’s Whistleblower Protection Act (WPA) does not provide recourse to an employee who reports another’s intent to violate the law in the future. Through this ruling, the Michigan Supreme Court declared that the reporting of “future, planned, or anticipated acts amounting to a violation or a suspected violation of a law” is not protected by the WPA.
In Pace, an employee alleged that she was terminated because she reported a co-worker’s plan to violate the law in the future. The Michigan Court of Appeals, in a published opinion, found that the WPA applied, ruling that, “where an employee has a good faith and reasonable belief that a violation of the law . . . is being actively planned, the report of that belief is sufficient to trigger the protections of the WPA.” The Michigan Supreme Court disagreed. It stated:
The reference in [Michigan Compiled Laws section] 15.362 to “a violation or a suspected violation of a law” plainly envisions an act or conduct that has actually occurred or is ongoing. A common dictionary defines “violation” in part as “the act of violating: the state of being violated.” This definition contemplates an existing act that has occurred or is ongoing. That is, “a violation or a suspected violation” refers to an existing violation. The provision must therefore be read in the context of some conduct or act that has already occurred or is occurring, and not some conduct or act that may or may not occur.
The Michigan Supreme Court ruled that, because section 15.362 contains no language indicating that future, planned or anticipated acts amounting to a violation or a suspected violation of the law are included within the scope of the WPA, “a stated intention to commit an act amounting to a violation of a law in the future does not constitute a violation or a suspected violation of law for purposes of [section] 15.362 as a matter of law.”
It should be noted that Pace does not change the long-standing principle that the WPA does provide protection to an employee who “is about to report” a violation or suspected violation of law. However, under Pace, it is now clear that reporting a future violation of law is not considered a “protected activity” under the WPA.