public policy exception in Michigan

2025The Court recognized the deleterious nature of allowing an employer to hamper duly established policy through adverse employment actions, which are “the most powerful weapon[s] at the disposal of the employer.” Id. at 648 . 12 Appeals did not consider, however, that there are other legal bases that may support an employee’s claim that their employer violated public policy by terminating their employment. 7 This Court has previously recognized several bases for a public-policy claim: (1) violation of proscriptions against termination “found in explicit legislative statements prohibiting the dis

2024The majority acknowledged that under Suchodolski v Mich Consol Gas Co, 412 Mich 692 (1982), which set forth a public-policy exception to the rule that an at-will employment contract may be terminated at any time for any reason, there was an implied prohibition on retaliatory discharges when the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.

2024To the contrary, Dudewicz plainly held: “A public policy claim is sustainable, then, only where there also is not an applicable statutory prohibition against 11 Id. at 79-80 . 5 discharge in retaliation for the conduct at issue.” 12 This Court’s use of “only” in Dudewicz establishes that there is one and only one circumstance in which an otherwise properly pleaded public-policy claim may be maintained: when there is not an applicable statutory antiretaliation provision.

2023In his concurring opinion in McNeil v Charlevoix Co, 484 Mich 69 , 90 n 5; 772 NW2d 18 (2009), Justice Michael Cavanagh expressed that “the context of the [Dudewicz] opinion shows that the Court intended to limit the public-policy exception only in instances in which a legislative enactment both provides an anti-retaliation provision and also creates an exclusive remedy.” (Emphasis added).

2020Because an employee does not have a common-law right to avoid termination when reporting an employer’s violation of the law, “a public-policy claim may only be sustained if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue.” Id. at 127 . “[W]here there exists a statute explicitly proscribing a particular adverse employment action, that statute is the exclusive remedy, and no other ‘public policy’ claim for wrongful discharge can be maintained.” Kimmelman, 278 Mich App at 573 .

2020Thus, to sustain a public-policy claim, an employee must have been terminated for “exercising a right guaranteed by law, executing a duty required by law, or refraining from violating the law.” Id. (emphasis added).

2020Finally, we conclude that the trial court did not err by dismissing the public-policy claim raised in Green’s amended complaint. “[W]hen a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, ‘[t]he WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity.’ ” McNeil-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 25 ; 891 NW2d 528 (2016) (second alteration in original), quoting Anzaldua v Neogen Corp, 292 Mich App 626, 631 ; 808 NW2d 804 (2011).

2020Finally, we conclude that the trial court did not err by dismissing the public-policy claim raised in Green’s amended complaint. “[W]hen a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, ‘[t]he WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity.’ ” McNeil-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 25 ; 891 NW2d 528 (2016) (second alteration in original), quoting Anzaldua v Neogen Corp, 292 Mich App 626, 631 ; 808 NW2d 804 (2011).

2024However, Dudewicz v Norris Schmid, Inc, 443 Mich 68 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589 (2007), subsequently held that a public-policy claim is sustainable only if there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.

2024In Dudewicz v Norris Schmid, Inc, 1 this Court clearly held that a public-policy claim is sustainable “only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” Because both OSHA and MiOSHA contain statutory prohibitions against discharging an employee in retaliation for the employee alerting the state or federal Occupational Safety 1 Dudewicz v Norris Schmid, Inc, 443 Mich 68, 80 ; 503 NW2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589 (2007). and Health Administration of a potentially h

2021See Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 239 ; 615 NW2d 241 (2000) (finding that justice required allowing the defendant to amend its pleadings to add an affirmative defense that a contract was void as against public policy); Gibson v Martin, 308 Mich 178, 180 ; 13 NW2d 252 (1944) (addressing the argument that “the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying on [it] . . . in order to void the contract”); Mahoney v Lincoln Brick Co, 304 Mich 694, 695-696 ; 8 NW2d 883 (1943) (“As an affirmative defense, defendant

2021See Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 239 ; 615 NW2d 241 (2000) (finding that justice required allowing the defendant to amend its pleadings to add an affirmative defense that a contract was void as against public policy); Gibson v Martin, 308 Mich 178, 180 ; 13 NW2d 252 (1944) (addressing the argument that “the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying on [it] . . . in order to void the contract”); Mahoney v Lincoln Brick Co, 304 Mich 694, 695-696 ; 8 NW2d 883 (1943) (“As an affirmative defense, defendant

2021See Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 239 ; 615 NW2d 241 (2000) (finding that justice required allowing the defendant to amend its pleadings to add an affirmative defense that a contract was void as against public policy); Gibson v Martin, 308 Mich 178, 180 ; 13 NW2d 252 (1944) (addressing the argument that “the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying on [it] . . . in order to void the contract”); Mahoney v Lincoln Brick Co, 304 Mich 694, 695-696 ; 8 NW2d 883 (1943) (“As an affirmative defense, defendant

2021See Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 239 ; 615 NW2d 241 (2000) (finding that justice required allowing the defendant to amend its pleadings to add an affirmative defense that a contract was void as against public policy); Gibson v Martin, 308 Mich 178, 180 ; 13 NW2d 252 (1944) (addressing the argument that “the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying on [it] . . . in order to void the contract”); Mahoney v Lincoln Brick Co, 304 Mich 694, 695-696 ; 8 NW2d 883 (1943) (“As an affirmative defense, defendant

2019Logically, the same rule should apply to the public policy exception. “[P]ublic-policy claims are analogous to claims made under § 2 of the [WPA], MCL 15.362, and . . . the WPA is analogous to antiretaliation provisions of other employment-discrimination statutes.” Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 453 ; 750 NW2d 615 (2008). -7- 516 F3d 516, 525 (CA 6, 2008), the Sixth Circuit held that temporal proximity can stand alone in certain cases: Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximit

2019Logically, the same rule should apply to the public policy exception. “[P]ublic-policy claims are analogous to claims made under § 2 of the [WPA], MCL 15.362, and . . . the WPA is analogous to antiretaliation provisions of other employment-discrimination statutes.” Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 453 ; 750 NW2d 615 (2008). -7- 516 F3d 516, 525 (CA 6, 2008), the Sixth Circuit held that temporal proximity can stand alone in certain cases: Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximit

2017See Phillips v Butterball Farms Co (After Second Remand), 448 Mich 239 ; 531 NW2d 144 (1995); Clifford v Cactus Drilling Corp, 419 Mich 356, 360 ; 353 NW2d 469 (1984), citing Sventko v Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Prysak v R L Polk Co, 193 Mich App 1, 9 ; 483 NW2d 629 (1992).

2017See Phillips v Butterball Farms Co (After Second Remand), 448 Mich 239 ; 531 NW2d 144 (1995); Clifford v Cactus Drilling Corp, 419 Mich 356, 360 ; 353 NW2d 469 (1984), citing Sventko v Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Prysak v R L Polk Co, 193 Mich App 1, 9 ; 483 NW2d 629 (1992).

1993Compare Trombetta v Detroit, T & I R Co, 81 Mich App 489 ; 265 NW2d 385 (1978) (the public policy claim was sustained where the defendant was discharged for refusing to manipulate and adjust pollution control reports), and Sventko v Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976) (the claim was sustained where the defendant was discharged for filing a lawful workers' compensation claim), with Covell v Spengler, supra (the public policy claim *80 was denied where the defendant also was sued under the WPA and the statute proscribed discharge in retaliation for the employee's complaints to the l

1993Compare Trombetta v Detroit, T & I R Co, 81 Mich App 489 ; 265 NW2d 385 (1978) (the public policy claim was sustained where the defendant was discharged for refusing to manipulate and adjust pollution control reports), and Sventko v Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976) (the claim was sustained where the defendant was discharged for filing a lawful workers’ compensation claim), with Covell v Spengler, supra (the public policy claim was denied where the defendant also was sued under the wpa and the statute proscribed discharge in retaliation for the employee’s complaints to the labor

1989Sventko v The Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90 ; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194 ; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).

1989Sventko v The Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90 ; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194 ; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).

1989Sventko v The Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90 ; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194 ; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).

1989Sventko v The Kroger Co, 69 Mich App 644 ; 245 NW2d 151 (1976); Hrab v Hayes-Albion Corp, 103 Mich App 90 ; 302 NW2d 606 (1981); Goins v Ford Motor Co, 131 Mich App 185, 192-194 ; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986).

1987See the discussion in Sedler, Choice of law in Michigan: A time to go modern, 24 Wayne L R 829, 840-842 (1978). 8 Other cases making use of the public policy exception include: Tucker v Norfolk & W R Co, 403 F Supp 1372 (ED Mich, 1975) (public policy exception regarding intrafamily immunity); Shaheen v Schoenberger, 92 Mich App 491 ; 285 NW2d 343 (1979) (Florida wrongful death damage limitation contrary to Michigan public policy where all parties are Michigan residents); Branyan v Alpena Flying Service, Inc, 65 Mich App 1 ; 236 NW2d 739 (1975) (Michigan public policy offended by wrongful death

1987See the discussion in Sedler, Choice of law in Michigan: A time to go modern, 24 Wayne L R 829, 840-842 (1978). 8 Other cases making use of the public policy exception include: Tucker v Norfolk & W R Co, 403 F Supp 1372 (ED Mich, 1975) (public policy exception regarding intrafamily immunity); Shaheen v Schoenberger, 92 Mich App 491 ; 285 NW2d 343 (1979) (Florida wrongful death damage limitation contrary to Michigan public policy where all parties are Michigan residents); Branyan v Alpena Flying Service, Inc, 65 Mich App 1 ; 236 NW2d 739 (1975) (Michigan public policy offended by wrongful death

2024Flenker v Willamette Indus, Inc, 266 Kan 198, 204; 967 P2d 295 (1998). 17 In addition to the reasons stated in Shawcross, the Kansas Supreme Court noted that the Kansas Secretary of Labor’s decision to act on a complaint may be motivated by a wide range of concerns, including budget constraints and political pressure.

2024Considering that the WPA has such a provision, Dudewicz invoked our longstanding caselaw in Pompey, 385 Mich at 552 , when analyzing whether a public-policy claim may be maintained despite the statute.

2024Dudewicz, 443 Mich at 78 . 9 violation of a right having no common-law counterpart are exclusive, not cumulative.” Id., citing Pompey, 385 Mich at 552 .

2023See Manzo v Petrella, 261 Mich App 705 ; 683 NW2d 699 (2004). 5 Respectfully, I disagree with Justice Cavanagh’s view that the WPA is an “exclusive statutory remedy.” The Legislature never designated it as such, and the words of the statute do not indicate that the Legislature intended to displace any existing common-law remedies for retaliatory discharge. -5- Justice Cavanagh continued, “This reasoning does not suggest that a non-retaliation provision in a legislative enactment would, standing alone, preempt a public-policy claim if the legislative enactment either did not provide a remedy or

2023See Manzo v Petrella, 261 Mich App 705 ; 683 NW2d 699 (2004). 5 Respectfully, I disagree with Justice Cavanagh’s view that the WPA is an “exclusive statutory remedy.” The Legislature never designated it as such, and the words of the statute do not indicate that the Legislature intended to displace any existing common-law remedies for retaliatory discharge. -5- Justice Cavanagh continued, “This reasoning does not suggest that a non-retaliation provision in a legislative enactment would, standing alone, preempt a public-policy claim if the legislative enactment either did not provide a remedy or

2021Price v High Pointe Oil Co Inc, 493 Mich 238, 242-243 ; 828 NW2d 660 (2013).

2021Price v High Pointe Oil Co Inc, 493 Mich 238, 242-243 ; 828 NW2d 660 (2013).

2020In Wurtz v Beecher Metro Dist, 495 Mich 242, 248 ; 848 NW2d 121 (2014), our Supreme Court noted that the trial court dismissed a public-policy claim on the ground that “the WPA provided the exclusive avenue of relief,” then concluded that the plaintiff “could not satisfy all of the WPA’s elements,” while implying no inconsistency in finding that the WPA provided the exclusive remedy even where the facts did not trigger its applicability.

2020In Wurtz v Beecher Metro Dist, 495 Mich 242, 248 ; 848 NW2d 121 (2014), our Supreme Court noted that the trial court dismissed a public-policy claim on the ground that “the WPA provided the exclusive avenue of relief,” then concluded that the plaintiff “could not satisfy all of the WPA’s elements,” while implying no inconsistency in finding that the WPA provided the exclusive remedy even where the facts did not trigger its applicability.