Under Michigan's Whistleblowers' Protection Act, a claim must be brought within 90 days of the occurrence. This is a comparatively short limitations period. Recently, however, the NLRB and OSHA entered into a memorandum of understanding(OM 14-60, 5/21/14) that provides that persons with a claim of retaliation which is untimely under the 30 day limitations period in OSHA will be referred to the NLRB where the limitations period is 6 months. The memo noted some individual safety and health activities involve concerted activity which is also protected under the NLRA. The Michigan Supreme Court recently held in Henry v. Laborers' Local 1191 that the NLRA did not preempt state whistleblower claims premised on retaliation for reporting suspected criminal misconduct [an enhanced version of this opinion is available to lexis.com subscribers]. The court noted that the employees also acted with the purpose of furthering group goals when they disputed the working conditions, specifically unfair wages and an unsafe work environment which the court referred to as "prototypical issues of dispute" under the NLRA. The court held that these claims were preempted. The allegations of criminal misconduct which were communicated to the Department of Labor did not relate to the employer's practices and were not preempted. A state court adjudicate the claim without having to consider whether employees engaged in protected, concerted activity in reporting those allegations. Employers need to be aware that employees can craft a claim of protected, concerted activity under the NLRA which encompasses a whistleblowing claims working within the parameters of the Henry decision. The Board is now more receptive than it had been under the Bush administration. Concerns about action that might be taken may not be over after 90 days after all.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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