Archive for March, 2013

“Don’t give too much for the whistle.”

This, however, was afterwards of use to me, the impression continuing on my mind; so that often, when I was tempted to buy some unnecessary thing, I said to myself, Don’t give too much for the whistle; and I saved my money.

The Whistle, Benjamin Franklin (emphasis added).  See http://grammar.about.com/od/60essays/a/whistlessay.htm

Let me start by saying this post has nothing to do with Mr. Franklin’s quote, or his essay The Whistle, but the quote has some special meaning to me, and both the quote and the post do mention whistles, and this is my blog, so what the heck.  And thanks Doc, we haven’t forgotten.

The Michigan Whistle Blower Protection Act protects employees who report or are about to report, verbally or in writing a violation or suspected violation of a law, regulation or rule of the United States or the State of Michigan to a public body.  MCL §15.362.  So what does report or about to report mean?  Well, in Hays v. Lutheran Social Services of Michigan, the Court of Appeals gave us some guidance.  The employee in this case was a home health care worker and she had a patient who liked to smoke dope in his home while she was working.  Seems the employee was worried that she might get in trouble so she called a local Narcotics Enforcement Team and asked about what her liability might be if she failed to report the use of illegal drugs.  She provided no other information to the “public body.”  Her employer found out about the call and terminated her employment for violating its confidentiality policies.  Of course, the employee sued claiming protection under the Whistle Blower Protection Act.  She claimed her call to the Narcotics Enforcement Team was a “report” under the Act.

The Court of Appeals disagreed and found that the employee had not made a “report” under the Act.  Seems the Act does not actually define report so the court went to the dictionary:

While the WPA does not define the term ‘report,’ courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning.  Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).  Accordingly, Random House Webster’s College Dictionary (2005), defines ‘report’ as ‘a detailed account of an event, situation, etc., [usually] based on observation or inquiry.’

Because the employee was only concerned about her liability and did not provide the “public body” with enough information to conduct an investigation there was, according to the court, no “report” under the Act.  The court put it this way:

[C]ategorizing plaintiff’s behavior as a “report” under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity.  Plaintiff’s phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from such behavior.  Plaintiff’s only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law.  Thus, plaintiff failed to establish that she made a report under the WPA and having failed to establish a prima facie case, defendant was entitled to summary disposition.

If you want to read more, including a link to the case, head over to our sister blog One Court of Justice.

 

NEW FINAL FMLA REGS TAKE EFFECT FRIDAY.

On Friday March 8, 2013, the latest set of Final Regulations implementing changes to the Family and Medical Leave Act go into effect.  The changes were passed by congress in 2010.  According to the Wage and Hour Division, the Major Provisions of the new rules are:

  • Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran, that includes four alternatives only one of which must be met.
  • Permitting eligible employees to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 regulations).
  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.
  • Creating a unique method of calculation of leave for airline flight crew employees, and establishing that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.

See Summary of the Major Provisions here.

You can find the Final rule here.  The Wage Hour Division Press release here.