Public-policy cause of action for retaliatory discharge; Effect of antiretaliation provisions & remedies in the Whistleblowers’ Protection Act (WPA), the Occupational Safety & Health Act (OSHA), & the Michigan Occupational Safety & Health Act (MiOSHA); Suchodolski v Michigan Consol Gas Co; Dudewicz v Norris Schmid, Inc; Pompey v General Motors Corp; Lash v Traverse City; White v Chrysler Corp; Grand Traverse Cnty v Michigan; Adequacy of remedies

Concluding the remedies under OSHA and MiOSHA are cumulative, the court held that plaintiff’s public-policy retaliatory discharge cause of action was not preempted. Thus, it reversed the Court of Appeals judgment, which had affirmed the trial court’s grant of summary disposition to defendants on the basis plaintiff’s claims were precluded by the WPA, OSHA, and MiOSHA, and remanded to the trial court. Plaintiff had worked at a plant owned by one of the defendants through a staffing agency, the other defendant. In “examining whether a public-policy claim based on alleged retaliatory action by the employer may be asserted, the threshold inquiry is whether the public-policy claim is based on a statute that has an antiretaliation provision. If so, the court must then ask whether the remedies of the underlying statute are exclusive. If deemed exclusive, the public-policy claim is preempted. But if” they are cumulative, the claim may proceed. Plaintiff asserted “the remedies provided under OSHA and MiOSHA are not exclusive because they are plainly inadequate.” The court held “that the ‘plainly inadequate’ qualifier is consistent with Michigan jurisprudence and that courts must therefore conduct an inquiry into the adequacy of the remedy when addressing whether statutory remedies are exclusive or cumulative. Furthermore, we disavow Lash to the extent that it disavows Pompey’s adequacy analysis as dictum.” Noting that the MiOSHA and OSHA antiretaliation provisions contain almost identical language, the court agreed “with plaintiff that the adequacy of available statutory remedies is a relevant consideration. We are not alone in having to resolve this issue, as other jurisdictions have also considered the adequacy of OSHA’s remedies.” Agreeing with the reasoning in those cases, the court concluded “the remedies provided in OSHA and MiOSHA are plainly inadequate to provide an employee with sufficient redress. The 30-day limitation, the unfettered discretion granted to the department, and the employee’s lack of control over what occurs after a complaint has been filed collectively provide sufficient reason to conclude that the remedies in OSHA and MiOSHA are plainly inadequate. Therefore, the remedies provided are merely cumulative and not exclusive and, accordingly, parties, like plaintiff, challenging their discharge as a matter of public policy are not restricted from doing so under Dudewicz.”

Dissenting, Justice Zahra (joined by Chief Justice Clement and Justice Viviano) “would affirm the Court of Appeals for two reasons.” He first found that “plaintiff’s public-policy claim is preempted by federal and state law. Plaintiff may not bring a public-policy claim for retaliatory termination when the underlying, applicable federal and state laws contain antiretaliation provisions.” In addition, plaintiff “utterly failed to establish that he falls within one of the narrow exceptions to Suchodolski.” Thus, he concluded “plaintiff was properly terminated from employment as an at-will employee.”