One of the more intriguing aspects of the Rutgers'
termination of basketball coach Mike Rice are reports, like
the New York Times story, that the FBI is investigating the former assistant
who released the video of the conduct that led to Rice's firing. The
inquiry centers around a letter from the former assistant's attorney to the
university demanding $950,000 which the university did not pay. The video
was subsequently released. The assistant has filed a wrongful termination
suit against the university and several individuals.
Obviously, without seeing the contents of the letter, it is difficult to put
the demand in its proper context. The investigation does highlight what is a
significant difference between whistleblower claims and other employment based
claims. That difference is in the motivation of the whistleblower.
The protection that is afforded depends upon the law of the state, but in
general, it is to protect an individual who has or is about to report a
violation of law as defined in the statute.
In May of 2012, the Michigan Supreme Court agreed to
review the court of appeals' decision in a whistleblower case--Whitman v.
City of Burton. In granting leave to appeal, the Court directed the
parties to brief the issue of whether a prior Supreme Court case holding that
the primary motivation of an employee pursuing a whistleblower claim must be a
desire to inform the public on matters of a public concern, as opposed to
person vindictiveness is still valid. The court of appeals had held that
the statute's purpose is to protect the public and not to be used an offensive
weapon by disgruntled employees. The plaintiff's motivation dealt with
obtaining pay for a unused sick and vacation days, and the court of appeals
noted that the plaintiff dropped his threat of legal action when he received
his money and waited to asset a legal violation until after he accumulated
thousands of dollars in unused leave.
What if the university involved had been in Michigan? Until and unless
the Court changes the law in Whitman, it would seem that a demand for
money for a whistleblower would doom subsequent litigation. Any
employer that is confronted with a demand to pay by an alleged whistleblower
would do well to contact its counsel immediately. Whether there is any
criminal liability in the Rutgers case remains to be seen, but it is clear that
demanding anything other than the compliance with the law could lead to
consequences neither intended nor wanted by the complaining individual.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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