Outside Legal Counsel PLC

Michigan Court of Appeals: 90 Days or Bust on Michigan Whistleblower Claims

For Immediate Release | Jan 26, 2011

In an unpublished decision, the Michigan Court of Appeals explicitly affirmed a strict 90-day window from the occurrence of the alleged violation (normally being fired) to bring a claim under the Michigan Whistleblowers’ Protection Act ("WPA"), MCL 15.361 et seq.

Under the WPA, an employer cannot discharge, threaten, or otherwise discriminate against an employee who truthfully reports a legal violation or is requested to assist or appear before a public authority. The WPA provides a 90 day window from the occurrence of the alleged violation to file a civil action. Employees can seek reinstatement, back wages, fringe benefits, seniority rights, actual damages, or any combination of these remedies. Liable employers can be ordered to pay all or a portion of the costs of litigation.

Attorneys have attempted to use the "continuing violations doctrine" to get around the 90-day limitation. This doctrine, when invoked, looks for a pattern of continuing discriminatory behavior behind a specific event (like being fired or demoted). In 2005, the Michigan Supreme Court announced that the “doctrine has no continued place in the jurisprudence of this state.”

In Wajer v Outdoor Adventures, Inc., Court of Appeals No. 294985 (unpublished), the plaintiff-employee was terminated on October 24, 2008 and then filed his lawsuit 116 days later on February 17, 2009. The Michigan Court of Appeals held that plaintiff had failed to identify any retaliatory action that took place within the 90-day period preceding the filing of his complaint. Therefore, the termination, which took place 116 days prior to filing, was the last occurrence and is outside the 90 day time limit. As a result, plaintiff was barred from his requested remedy.

Employees who seek to file a "whistleblowers" claim need to consult their counsel as soon as possible to permit counsel time to file within the 90-day time period. This time limit is being strictly enforced under Michigan law.

Philip L. Ellison, MBA, JD, Esq is an attorney, business counselor, and civil litigator with Michigan-based Outside Legal Counsel PLC. He has extensive experience in law, business management, corporate operations as well as internal and external communications. Visit his online profile at www.olcplc.com