Take a look at this Michigan Court of Appeals case where the court ruled a former employee provided direct evidence to substantiate her Whistleblower’s Protection Act (WPA) claim.
Jean Berry worked for nearly two years as a home health care aid for In Your Golden Years, owned by Judith Girardin. When Berry began working in excess of 40 hours per week, she requested that Girardin pay her overtime but Girardin refused. Berry then filed a complaint, alleging Girardin violated Michigan’s Minimum Wage Law. After Girardin received notification of the complaint, she paid Berry for her overtime hours. According to Berry, it was at this point that Girardin began treating her unfairly in retaliation of her overtime claim. Berry alleged that Girardin engaged in a series of retaliatory actions, including: telling Berry that “payback is Hell”; drastically reducing Berry’s hours to less than 30 hours per week; attempting to coerce clients to agree that they were dissatisfied with Berry’s performance; and changing the time and place that Berry was to pick up her paychecks. Nearly one year after the overtime complaint was filed, Berry was fired. Berry filed suit alleging a WPA violation and the trial court ruled in favor of Girardin.
On appeal, the court held that Berry presented direct evidence linking her protected activity (reporting the overtime issue) to Girardin’s intent to terminate her. The court reasoned that although Girardin did not terminate Berry until nearly a year after she filed her overtime complaint, that Girardin may have still formed an improper MOTIVE to fire Berry!
While Girardin’s alleged actions were more on the overt side in this case, employers must be EXTREMELY careful in avoiding actions that even give an APPEARANCE of retaliation. And although the WPA has a short window in which an employee can bring a claim, biding the time and then waiting to terminate will not allow you to skip past the clock and simply avoid liability. This is a very important issue that employers must understand! Questions? Concerns? Contact C&G today!!
Read the opinion on this case by clicking here !
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