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Labor and Employment Law

The Whistleblower and At Will Employment: Timing Is Not Everything

 One of the cardinal rules for employers is the documentation of performance issues. Advise the employee of the issue, and document the conversation and what was discussed. A lack of documentation, although not advisable, is not necessarily fatal as was recently shown in an unreported Michigan court of appeals decision in Bolish v. Miller Park Townhouses, LLC [an enhanced version of this opinion is available to subscribers].

Plaintiff was terminated for performance issues and sued under Michigan's Whistleblowers' Protection Act. The triggering event was a complaint to the police of an assault after her supervisor shut a door in her face. The employer argued that the termination was the result of performance issues which began over a year before the alleged event. Plaintiff received a judgment of over $100,000, and the employer appealed. The court of appeals, with one judge concurring in the result, vacated the judgment and reversed the denials of summary disposition and JNOV.

At trial, plaintiff argued that none of instances were ever documented in her personnel file. The employer responded that it did not maintain personnel files at facilities that were in receivership as plaintiff's facility, but the employer produced numerous emails into evidence at trial documenting the concerns. Plaintiff acknowledged her awareness of these concerns contemporaneous with their occurrence. The court noted that there was no dispute that the instances occurred.

The court stated that there was no dispute that plaintiff failed to show more than the a close proximity between the decision to fire her and her call to the police. It rejected plaintiff's argument that the lack of documentation was additional evidence of causation, because she was an at will employee. The court also stated that the fact the defendants did not provide a reason to the plaintiff in her termination letter was in no way evidence that the firing was the result of her activity of reporting an assault to the police. The lack of any reason being documented is not evidence that the plaintiff was fired for her call; at best, it would be evidence that the proffered reasons for firing her were pretext. Since plaintiff failed to establish a prima facie case, the analysis never gets to this step.

Employers should view Bolish as a cautionary tale. You may be able to get by without documentation and providing a reason for termination, but why take the chance? Bolish is unique in that there was some documentation in the form of emails and the employee acknowledged being made aware of the issues. It is better to follow the cardinal rule and document as you go.

 For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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