57 wayne l. rev. 955 - employment and labor law - kimberly g. altman

955

EMPLOYMENT AND LABOR LAW

KIMBERLY G. ALTMAN†

I. INTRODUCTION ..................................................................................

955 II. WORKERS’ COMPENSATION ISSUES ................................................. 955

A. The Case of the Hockey Player—Retroactivity .......................... 955 B. The Case of the Painter—Res Judicata ...................................... 957

III. UNION-MANAGEMENT RELATIONS ................................................. 959 A. Arbitration ................................................................................. 959 B. The Power of the Judiciary to Make Employment Decisions .... 961

IV. PRIVATE SECTOR EMPLOYMENT ..................................................... 965 V. CONCLUSION .................................................................................... 967

I. INTRODUCTION

This Article addresses developments in employment and labor law in Michigan courts during the Survey period.1 Specifically, this Article discusses decisions of the Michigan Supreme Court and Michigan Court of Appeals. Although the identified cases are few (five in total),2

II. WORKERS’ COMPENSATION ISSUES

they deal with workers’ compensation issues, arbitration, and retaliation for whistle blowing activity. Practitioners in the area of labor and employment law, regardless of their interest, should pay attention to the decisions released during the Survey period.

A. The Case of the Hockey Player—Retroactivity

The first case this Article addresses is the only case decided by the Michigan Supreme Court identified during the Survey period. While it involves an employment law issue under Workers’ Compensation, the case is really about retroactivity and the role of stare decisis, and more significantly, the changing composition of the Michigan Supreme Court. † Career Law Clerk to the Honorable Avern Cohn, Senior United States District Judge for the Eastern District of Michigan. B.A. 1992, with high honors, Michigan State University—James Madison College; J.D., 1995, magna cum laude, Wayne State University Law School. 1. The Survey period includes cases decided between June 1, 2010 and May 31, 2011. 2. The cases discussed in this Article were identified by the Wayne Law Review editors as addressing labor and employment law issues.

956 THE WAYNE LAW REVIEW [Vol. 57: 955

In Bezeau v. Palace Sports and Entertainment,3 a divided Michigan Supreme Court held that the Michigan Supreme Court’s prior decision in Karaczewski v. Farbman Stein & Company4 would not apply prospectively.5 Karaczewski held that under the plain language of the Worker’s Disability Compensation Act,6 a claim raised by an employee who was not a Michigan resident at the time of sustaining a work-related injury was not subject to the jurisdiction of the Workers’ Compensation Agency.7 Over the objection of three justices, the supreme court also gave the holding full retroactive effect.8 The effect of the holding was to overrule the Michigan Supreme Court’s contrary interpretation of the applicable statute in the decision of Boyd v. W.G. Wade Shows.9 In Bezeau, the supreme court considered the retroactivity question anew and concluded Karaczewski was wrongly given retroactive effect.10

As to the facts in Bezeau, the plaintiff, a professional hockey player, entered into a three-year agreement with the defendant in 1998, who owned the Detroit Vipers professional hockey team.

11 The parties signed the contract in Michigan and the plaintiff was a Michigan resident at the time of contracting.12 In June 2000, the plaintiff was injured while working for his father in New Brunswick, Canada.13 The plaintiff remained in New Brunswick to recover, and during that time he became a resident of New Brunswick.14

In October 2000, the Vipers loaned plaintiff to another professional hockey team in Rhode Island.

15 During the first game of the 2001-2002 season, the plaintiff was hit by another player, aggravating his injury.16 The plaintiff was subsequently unable to return to hockey.17

3. 487 Mich. 455, 795 N.W.2d 797 (2010).

4. 478 Mich. 28, 732 N.W.2d 56 (2007). 5. Bezeau, 487 Mich. at 457. 6. See MICH. COMP. LAWS ANN. § 418.845 (West 2009). 7. Karaczewski, 478 Mich. at 65. 8. Id. at 44 n.15. 9. 443 Mich. 515, 505 N.W.2d 544 (1993). Under Boyd, Michigan workers’ compensation laws applied to benefit claims regardless of the injured employee’s citizenship, provided the employment contract was made in Michigan. See Karaczewski, 478 Mich. at 33, 44. 10. Bezeau, 487 Mich. at 469. 11. Id. at 458. 12. Id. 13. Id. 14. Id. 15. Id. 16. Bezeau, 487 Mich. at 458. 17. Id.

2011] EMPLOYMENT AND LABOR LAW 957

In June 2001, the plaintiff applied for workers’ compensation benefits in Michigan, claiming his injury developed as a result of playing professional hockey.18 Plaintiff prevailed in receiving benefits on appeal.19 While plaintiff’s case wove its way to the Michigan Court of Appeals and back to the Workers’ Compensation Appellate Commission, the Michigan Supreme Court issued Karaczewski, resulting in the dismissal of plaintiff’s claim because he was not a resident of Michigan in October 2000.20

In terms of labor and employment law, Bezeau is significant only to the extent that its holding regarding out-of-state injuries “affects only claims based on injuries that occurred on or before the date [the] Court decided Karaczewski, as long as the claim has not already reached final resolution in the court system.”

21 This is a narrow time frame. Moreover, the Michigan legislature later amended MCL section 418.845 “to now make it clearly applicable to out-of-state injuries.”22 Be that as it may, an out-of-state employee who sustained a work-related injury during this time will not be able to seek workers’ compensation benefits even if the employment contract was made in Michigan.23

What is more interesting about the case has little to do with labor and employment law. The overruling of a prior Michigan Supreme Court opinion, which itself overruled another Michigan Supreme Court opinion, illustrates the division of the Michigan Supreme Court and its continued struggle to shape the law of Michigan.

B. The Case of the Painter—Res Judicata

In Bennett v. Mackinac Bridge Authority,24 the Michigan Court of Appeals considered whether res judicata bars a plaintiff from seeking workers’ compensation benefits after being unable to collect from another employer.25 The court of appeals concluded it did not.26

18. Id.

19. Id. at 459. 20. Id. at 460. 21. Id. at 468. 22. Bezeau, 487 Mich. at 460 n.1. See also 2008 Mich. Pub. Acts 499. 23. Bezeau, 487 Mich. at 460 n.1. See also MICH. COMP. LAWS ANN. § 418.845 (West 2009). 24. 289 Mich. App. 616, 808 N.W.2d 471 (2010). 25. The case was before the court of appeals on remand from the Michigan Supreme Court. See Bennett v. Mackinac Bridge Auth., 483 Mich. 1031, 765 N.W.2d 614 (2009). 26. Bennett, 289 Mich. App. at 618.


The plaintiff worked on the Mackinac Bridge as a painter for several years.27 He had several employers during that time.28 In May 2005, the plaintiff injured his right knee while working for Allstate Painting Company, Inc.29 Although the plaintiff was aware Allstate did not have workers’ compensation insurance, he nonetheless filed a claim for benefits.30 The plaintiff was awarded benefits, but was unable to collect from Allstate.31

The plaintiff then filed for benefits from American Painting and the Mackinac Bridge Authority under the statutory employment provision of the Worker’s Disability Compensation Act (WDCA).

32 Defendants moved for dismissal on the grounds of res judicata.33 “In response, plaintiff argued that res judicata did not . . . [apply] because no mandatory joinder of parties exists in workers’ compensation cases, because defendants had not been parties to the first action, and because defendants were not in privity with Allstate.”34

The Michigan Court of Appeals, relying on Viele v. DCMA,

35 reaffirmed the principle that “the WDCA does not require the joinder of parties in workers’ compensation proceedings.”36 This is particularly true “in the context of the statutory employment provision of § 171.”37 The court of appeals also considered section 171, noting that the text contains nothing requiring or referencing the mandatory joinder of parties.38 The court of appeals then noted that in other statutes, the Legislature expressly required the joinder of parties, indicating the legislature’s awareness of the issue of joinder and mandating it when it deems necessary.39

27. Id.

Of even greater significance, the court of appeals observed

28. Id. 29. Id. 30. Id. 31. Id. 32. Bennett, 289 Mich. App. at 618. See also MICH. COMP. LAWS ANN. § 418.171 (West 2009); Smith v. Park Chem. Co., 154 Mich. App. 180, 183, 397 N.W.2d 260 (1986) (“Principals subject to workers’ compensation liability . . . are commonly called ‘statutory employers’”). 33. Bennett, 289 Mich. App. at 619. 34. Id. 35. 167 Mich. App. 571, 578-79, 423 N.W.2d 270 (1988) (holding that res judicata did not bar a claim by a plaintiff against a statutory employer even though plaintiff had also filed a successful claim for benefits against his direct employer). 36. Bennett, 289 Mich. App. at 630. 37. Id. at 631. 38. Id. 39. Id. at 631-33.


that other sections of the WDCA contain mandatory joinder provisions.40

Given the particular contractual relationship between statutory employers and direct employers, it is beyond dispute that statutory employers are in privity with direct employers for purposes of res judicata. MCL 418 §171(1); Viele, 167 Mich. App at 580. Accordingly, application of res judicata in a case such as this will essentially create a de facto rule of mandatory party joinder, requiring an injured employee who sues his or her direct employer to join at the outset all possible statutory employers in the same action in order to avoid the res judicata bar that would otherwise inevitably result. One need not look any further than the circumstances of the case at bar. By applying the doctrine of res judicata to preclude plaintiff’s subsequent action against his alleged statutory employers, the magistrate and the WCAC majority have read into § 171 a rule of compulsory party joinder that finds no support in the statutory text.

The court of appeals summed up its conclusion thusly:

41

This case is significant in the employment law context in statutory and direct employment situations. An employer should be aware that the fact that an employee has filed a prior workers’ compensation claim against another employer does not prevent the employee, whether successful or not, from pursuing a second claim.

III. UNION-MANAGEMENT RELATIONS

Two cases were decided in the area of union-management relations, both in public sector employment. Interestingly, both cases involved the same parties, American Federation of State, County, and Municipal Employees (AFSCME) Council 25 and Wayne County. However, the judiciary entered the fray in the second case when the Third Circuit Court intervened in a dispute involving the assignment of court clerks.

A. Arbitration

In AFSCME Council 25 v. Wayne County,42

40. Id. at 633.

the court of appeals reversed and remanded a decision of the circuit court which compelled

41. Id. at 633-34. 42. 290 Mich. App. 348, 810 N.W.2d 53 (2010).


arbitration of a dispute over retiree health benefits.43 Defendant Wayne County argued that arbitration was not required because the contract at issue provided for arbitration of claims which arise during the collective bargaining agreement (CBA).44 According to Wayne County, the dispute over retiree health care benefits arose after the term of the CBA.45 The court of appeals agreed, although it looked to a different section in the CBA than the one cited by defendant.46 The CBA provided: “In the event differences should arise between the Employer and the Union during the term of this Agreement as to the interpretation and application of any of its provisions, the parties shall act in good faith to promptly resolve such differences in [arbitration] . . . .”47 The dispute between the parties pertained to a provision in the CBA which allowed employees who retired after December 1, 1997 “to select a medical-benefit plan from available plans offered during open enrollment.”48 The CBA expired on July 31, 2008 at which time a successor agreement became effective.49 The court of appeals then explained that the dispute did not arise “until September 3, 2008, at the earliest, when defendant notified retirees of the modifications to their prescription-drug benefits scheduled to take effect on October 1, 2008.”50 As such, the dispute arose after the expiration of the CBA and could therefore not be considered as a difference arising during the term of the CBA.51

The court of appeals also rejected the plaintiff’s argument that retiree health care benefits are “vested” rights which continued beyond the expiration of the CBA.

52 The court of appeals acknowledged that the right to arbitrate can survive an expired CBA in the case of accrued or vested rights.53 However, if a CBA contains language which limits arbitration to disputes arising under the term or life of the agreement, the language of the CBA controls.54

The significance of this case is that it reaffirms the courts’ deference to contract language. Regardless of the principle of law, which arbitrarily

43. Id. at 349-50. 44. Id. at 350. 45. Id. 46. Id. at 350-51. 47. Id. at 351 (internal quotation marks omitted). 48. AFSCME Council 25, 290 Mich. App. at 351. 49. Id. 50. Id. 51. Id. 52. Id. 53. Id. at 351-52. 54. AFSCME Council 25, 290 Mich. App. at 352.


presumes when a CBA contains an arbitration clause,55 the language of the CBA is controlling.56 Employers and unions should carefully bargain arbitration provisions. Inclusion of language limiting arbitration to disputes which arise during the term of the agreement will trump the presumption of arbitrariness, even in the case of vested or accrued rights.57

B. The Power of the Judiciary to Make Employment Decisions

In AFSCME Council 25 v. County of Wayne,58 the Michigan Court of Appeals considered the question of whether the judges in the Third Circuit Court in Wayne County have the “exclusive authority” to select and assign a “deputy circuit court clerk (hereafter ‘court clerk’) to serve in a judge’s courtroom . . . .”59 The dispute began in March 2007 when the plaintiff (the union) filed a “complaint to compel” against the defendant (Wayne County), contending that the collective bargaining agreement (CBA)60 between the union and Wayne County covered various county jobs, including court clerks.61 The union further contended that Wayne County did not comply with the CBA when it filled a court clerk position not based on seniority and with a limited pool of applicants.62 The union filed grievances regarding these positions in 2002 and obtained a favorable ruling from an arbitrator in 2004.63 The union claimed that Wayne County failed to comply with the 2004 order and continued to fill court clerk positions without regard to seniority and without consideration of the appropriate pool of applicants.64

Meanwhile, in 2005, the chief judge of the Third Circuit Court wrote a letter to the Wayne County clerk, stating that the court “would not abide by the arbitrator’s ruling.”

65

55. See e.g., United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960); Cleveland Elec. Illuminating Co. v. Util. Workers Union of Am., Local 270, 440 F.3d 809, 814 (6th Cir. 2006).

The chief judge noted that “over the

56. AFSCME Council 25, 290 Mich. App. at 350 n.2. 57. Id. at 353. 58. 292 Mich. App. 68; -- N.W.2d -- (2011). 59. Id. at 70. 60. Id. at 71. Because the union represents public employees and Wayne County is a public employer, the parties’ relationship is governed by the Public Employment Relations Act (PERA), MICH. COMP. LAWS ANN. § 423.201-217 (West 1947), which applies to public sector labor law. Id. 61. Id. at 70-71. 62. Id. at 72. 63. Id. 64. AFSCME Council 25, 292 Mich. App. 68 at 72. 65. Id. at 74.


past 30 years” the court’s practice was for the judge to select a court clerk of his or her choosing.66 The chief judge also included a copy of Local Administrative Order No. 2005-06 (LAO 2005-06), promulgated by the court, which governed the selection and assignment of court clerks.67 Notably, LAO 2005-06 did not provide for selection based on seniority.68 In July of 2006, after the Michigan Supreme Court accepted the LAO 2005-06, the chief judge “entered an order regarding LAO 2005-06 . . . directed at the [Wayne] [C]ounty clerk.”69 As the court of appeals described the contents of the order, it “mandated the [Wayne County] clerk to comply with LAO 2005-06, noting . . . that the [Circuit Court] and its judges control the courtrooms under the judicial branch’s constitutional powers.”70

Turning back to the union’s complaint against Wayne County, the trial court permitted the Third Circuit Court to intervene.

71 Following motions for summary disposition by the union and the Third Circuit Court, the trial court sided with the union and ordered the Third Circuit Court to comply with the arbitrator’s ruling.72

The Third Circuit Court appealed.

73 The Michigan Court of Appeals began its analysis by considering whether the Third Circuit Court was bound “by the CBA and the CBA-based arbitration ruling under common-law principles . . . [of] contract formation and liability.”74 The court of appeals noted that the Third Circuit Court was not a party to the CBA nor part of the arbitration proceedings.75 Considering those facts in light of well-established case law that a party cannot be bound by a contract to which it is not a party,76 and that a non-party can be bound by a CBA but only under limited circumstances not present in the case,77 the court of appeals concluded that common law did not provide a ground to bind the Third Circuit Court to the CBA or the arbitrator’s decision.78

66. Id.

67. Id. at 70-75. 68. Id. at 75. 69. Id. 70. AFSCME Council 25, 292 Mich. App. at 75. 71. Id. at 76. 72. Id. at 78. 73. Id. 74. Id. at 80. 75. Id. 76. AFSCME Council 25, 292 Mich. App. at 80 (quoting Equal Emp’t Opportunity Comm’n v. Waffle House, Inc., 534 U.S. 279, 294 (2002)). 77. See id. at 81 (citing Thomson–CSF, S.A. v. Am. Arbitration Ass’n, 64 F.3d 773 (2d Cir. 1995)) (listing exceptions as including “incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel”). 78. Id. at 82.


The court of appeals then considered whether the Third Circuit Court was bound by the CBA and the arbitrator’s decision under PERA,79 which requires that “a public employer” collectively bargain with a union representing its employees.80 The court of appeals rejected this argument, noting that in a similar case,81 the lack of evidence of any involvement in the collective bargaining process was dispositive, regardless of any requirement under PERA.82 According to the court of appeals, even more significant in disposing of PERA was the fact that the LAO 2005-06 was constitutionally-based.83

We agree that the provisions in the CBA that address intradepartmental job transfers and assignments, setting forth seniority and minimum-service criteria, and that address grievance procedures, including arbitration, do concern conditions of employment and are mandatory subjects of collective bargaining. Generally speaking, under the caselaw already cited, a PERA-based contract prevails in most instances even when in conflict with other authorities. However, the [Third Circuit Court] invoked its constitutional powers as part of the judiciary in promulgating LAO 2005-06 and in rejecting and failing to heed the CBA and the arbitration ruling. Some of the PERA caselaw already discussed, while not involving the judicial branch’s inherent constitutional powers, suggests that PERA may prevail over conflicting constitutional provisions; again, PERA is grounded in the Michigan Constitution. The union itself does not make this argument, and it states that PERA prevails over inconsistent laws, “save the Constitution.”

The court of appeals explained:

We hold that a PERA-based contract and related arbitration award that infringe on the judicial branch’s inherent constitutional powers cannot be enforced to the extent of the encroachment. We have not been directed to any cases that suggest that if honoring PERA impinges on the judiciary’s inherent constitutional authority, PERA governs and prevails. The inherent-powers doctrine, which has been recognized for

79. See supra note 60. 80. AFSCME Council 25, 292 Mich. App. at 82-83 (quoting MICH. COMP. LAWS § 423.215(1) (1947)). 81. See St. Clair Prosecutor v. AFSCME, 425 Mich. 204, 207-08, 388 N.W.2d 231, 237 (1986). 82. AFSCME Council 25, 292 Mich. App. at 83-84 (citing St. Clair Prosecutor, 425 Mich. at 207-08). 83. Id. at 87.


over 120 years, “is derived from the separation of governmental powers set forth principally in Const 1963, arts 4–6, relating to the authorities of the legislative, executive, and judicial branches of government, and Const 1963, art 3, § 2 . . . .” The “doctrine is rooted in the constitutional command that the judicial power of this state is vested exclusively in ‘one court of justice[’] [under] Const 1963, art 6, § 1.”84

Having concluded that PERA did not trump the Third Circuit Court’s inherent constitutional powers,

85 the court of appeals had to determine whether the assignment or selection of a court clerk falls within that inherent authority.86

We find that the directives contained in LAO 2005–06, which required the county clerk to assign a court clerk to a presiding judge’s courtroom on the basis of the judge’s selection of a clerk from the appropriate pool, constitute noncustodial ministerial tasks relative to the division of duties and the scope and the form of performances within the circuit court. As such, LAO 2005–06 was a proper exercise of the [Third Circuit Court]’s exclusive judicial authority under the Michigan Constitution, and it was permissible because it concerned “internal court management.”

The court of appeals held that it does, concluding:

87

Finally, the court of appeals rejected the union’s argument that LAO 2005-06 violates the separation of powers doctrine as infringing on the county’s authority, as a legislative body, to control the employment conditions of its employees.

88

84. Id. at 87-88 (internal footnotes and citation omitted) (quoting 46th Circuit Trial Ct. v. Crawford Co., 476 Mich. 131, 140, 144-45, 719 N.W.2d 553 (2006)).

The court of appeals found that the assignment of a court clerk to a particular judge in the Third Circuit

85. The court of appeals also considered whether various other statutory provisions cited by the parties, including MICH. COMP. LAWS § 600.571(a) (providing that the county clerk shall be the clerk of the circuit court) and MICH. COMP. LAWS. § 600-579(1) (stating that the county clerk in certain populated counties shall appoint a deputy chief clerk and other deputy clerks for each active judge), impacted whether the Third Circuit Court was bound by the arbitrator’s ruling. Id. at 93-94. The court of appeals ultimately did not rule on the statutory issues, stating that “placing any reliance on the statutes is problematic, and the Michigan Constitution provides a clear path in resolving the dispute.” Id. at 94. 86. Id. at 95. 87. Id. at 101 (quoting MICH. CT. R. 8.112(B)(1)). In reaching this conclusion, the court of appeals looked to analogous cases from other jurisdictions, including West Virginia and New Jersey. See id. at 101-03. 88. AFSCME Council 25, at 103.


Court is a judicial, not a legislative, matter.89 The court of appeals also noted that the CBA covers a host of issues and the Third Circuit Court has agreed to honor all of its terms except the “minimally intrusive yet constitutionally mandated exception” of court clerk selection and assignment.90

In the end, the case is significant for its detailed discussion of the parameters of judicial authority in the employment context. A union with members who are employed in the judiciary, such as the county employees in this case, should be aware that not all of a CBA’s requirements may apply to its employees serving in the judiciary. The court of appeals was careful to say that the decision was limited to the assignment of court clerks to courtrooms;

91

IV. PRIVATE SECTOR EMPLOYMENT

whether other positions may be similarly impacted is not out of the question.

In Anzaldua v. Neogen Corporation,92 the court of appeals affirmed the dismissal of a lawsuit by a former employee of defendant.93 Following her termination, the plaintiff brought a claim for retaliatory discharge in violation of public policy.94 The defendant argued that the plaintiff’s claim arose under the Whistleblowers’ Protection Act (WPA)95 and was untimely under the WPA’s 90-day limitation period.96

In mid-2007, the defendant was working on “establishing a laboratory for the manufacture of an equine botulism vaccine.”

97 Plaintiff was employed by the defendant as the Select Agent Program Alternate Responsible Officer at its Lansing facility.98 “Under applicable regulations,” plaintiff was to ensure that no one was admitted into “restricted laboratory areas” without proper authorization.99 However, this restriction was not to take effect until the laboratory received the botulism agent, expected in the Fall of 2007.100

89. Id.

90. Id. at 104. 91. Id. at 104-05 n.13. 92. 292 Mich. App. 626, 808 N.W.2d 804 (2011). 93. Id. at 628. 94. Id. at 629. 95. MICH. COMP. LAWS ANN. § 15.361-369 (West 2004). 96. Anzaldua, 292 Mich. App. at 629. The 90-day limitations period can be found at MICH. COMP. LAWS ANN. § 15.363. Id. 97. Id. at 628. 98. Id. 99. Id. 100. Id.


In May 2007, a deputy boiler inspector from the State Department of Labor visited defendant’s facility for an unannounced inspection of the boilers.101 Plaintiff escorted the deputy inspector through the facility, and the inspector discovered an unregistered boiler and issued a citation.102 When the inspector returned a few days later, the defendant’s maintenance manager informed the plaintiff that he, not plaintiff, would accompany the inspector.103 The maintenance manager also told the plaintiff not to talk to the inspector “and to channel all communications through [him].”104 Plaintiff, however, accompanied the inspector and cooperated with him when he asked questions about another boiler in the facility.105

Over two years later, in May 2009, the plaintiff sued defendant, claiming her termination was in retaliation for her complying with her statutory duty to allow the inspector into the facility.

106 The defendant filed a motion for summary disposition, contending that the plaintiff’s claim fell under the WPA and was time-barred.107

The court of appeals had to decide whether the plaintiff’s claim arose under the WPA or was a proper claim for retaliatory discharge in violation of public policy.

108 In so doing, the court of appeals noted that it looks to “the complaint as a whole and look[s] beyond the parties’ labels to determine the exact nature of the claim.”109 The court of appeals began its analysis by looking at the language of the WPA, which provides that an employer cannot discharge or retaliate against an employee “because the employee ‘reports or is about to report . . . a violation or a suspected violation of a law or regulation’ or because ‘an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body.’”110

In an attempt to save her claim from falling under the WPA, plaintiff argued that she was not engaged in a protected activity because “she was not requested by a public body to participate in an ‘investigation’ or ‘inquiry’” within the meaning of the WPA, and characterized the

101. Id. 102. Anzaldua, 292 Mich. App. at 628 103. Id. at 628-29. 104. Id. at 629. 105. Id. 106. Id. 107. Id. at 629. 108. Anzaldua, 292 Mich. App. at 631. 109. Id. (citing Adams v. Adams, 276 Mich. App. 704, 710-11, 742 N.W.2d 399 (2007)). 110. Id. at 630 (citing MICH. COMP. LAWS § 15.362).


inspection as “routine.”111 The court of appeals rejected this argument, noting that the inspector, a state officer, was part of a public body.112 As to whether the inspector was conducting an “investigation” or “inquiry,” the court of appeals looked to the plain meaning of those terms, concluding that the conduct of the inspector fell within an “inquiry” and plaintiff therefore engaged in activity protected under the WPA in her dealings with the inspector.113 Because plaintiff’s claim arose exclusively under the WPA and because the WPA contains a 90-day limitation period, which plaintiff undisputedly did not comply with, the court of appeals concluded that her claim was properly dismissed.114

This case is important because it illustrates the importance of proper pleading. While there are a host of various statutes under which an aggrieved employee can sue an employer, a plaintiff should take care to ensure she is making a viable claim. Courts will look beyond the label of a claim, particularly where the conduct at issue implicates a statute such as the WPA, which imposes a strict time requirement for filing suit.

115

V. CONCLUSION

A plaintiff cannot avoid application of a limitations period by creative pleading.

The Michigan courts decided some interesting cases in the area of employment and labor law during the Survey period.

111. Id. at 632. The WPA defines a “[p]ublic body” to include “[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.” MICH. COMP. LAWS § 15.361(d)(i). 112. Id. at 633. 113. Id. at 632-33. 114. Anzaldua, 292 Mich. App. at 632. 115. See supra note 96.

57 wayne l. rev. 955 - employment and labor law - kimberly g. altman

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