| 1 | 1 | | HOUSE BILL NO. 4448 A bill to prohibit employers from wrongfully discharging employees; to provide for the powers and duties of certain state and local governmental officers and entities; and to provide remedies. the people of the state of michigan enact: Sec. 1. This act may be cited as the "wrongful discharge from employment act". Sec. 3. As used in this act: (a) "Constructive discharge" means an employee's decision to terminate employment because of a situation created by an act or omission of the employer that an objective, reasonable person would find so intolerable that termination is the only reasonable alternative. Constructive discharge does not include the decision to terminate employment because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment. (b) "Department" means the department of labor and economic opportunity. (c) "Director" means the director of the department or the director's designee. (d) "Discharge" includes constructive discharge and any other termination of employment including, but not limited to, any of the following: (i) Resignation. (ii) Elimination of the job. (iii) Layoff for lack of work. (iv) Failure to recall or rehire. (v) Any other cutback in the number of employees. (e) "Employee" means an individual who works for an employer under an express or implied contract of hire. Employee does not include an individual who is an independent contractor. (f) "Employer" means a person that employs 1 or more employees. (g) "Fringe benefits" means any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, or pension benefit plan in effect on the date of a discharge. (h) "Just cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties or a disruption of the employer's operation. (i) "Lost wages" means the gross amount of wages that would have been reported to the Internal Revenue Service as gross income on form W-2 had employment not been terminated, and includes additional compensation deferred at the option of the employee. (j) "Person" means an individual or a sole proprietorship, partnership, corporation, association, or any other legal entity. (k) "Public policy" means a policy in effect on the date of a discharge concerning the public health, safety, or welfare established by law. (l) "Wrongful discharge" means a discharge if 1 or more of the following conditions exist: (i) The discharge was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy. (ii) The discharge was not for just cause and the employee had completed the employer's probationary period of employment. (iii) The employer violated the express provisions of the employer's own written personnel policy. Sec. 5. (1) Except as otherwise provided in subsection (2), an employer shall not wrongfully discharge an employee. (2) During a probationary period of employment, an employee is an at-will employee. An employer shall not establish a probationary period of employment that is longer than 3 months. There is not a probationary period of employment if either of the following apply: (a) The employer fails to establish the probationary period of employment before or at the time of hire. (b) The employer fails to give notice to the employee of the employee's probationary period of employment before or at the time of hire. (3) The following factors must be used to determine whether just cause exists: (a) Whether the employer did 1 or more of the following: (i) Notified the employee of the workplace policy or rule that the employee allegedly violated before the alleged violation occurred. (ii) Before discharging the employee, conducted a fair and objective investigation to determine if the employee violated a workplace policy or rule. (iii) Based on the investigation conducted under subparagraph (ii), obtained substantial evidence that the employee violated a workplace policy or rule. (iv) Applied the employer's workplace policies and rules fairly and without discrimination. (b) Whether the workplace policy or rule that the employee allegedly violated is related to reasonable business efficiency and performance expectations for the employee. (c) Whether the discharge was reasonably related to the seriousness of the employee's alleged violation, taking into consideration the employee's disciplinary record. Sec. 7. (1) If an employer violates this act, the employee affected by the violation may do either or both of the following: (a) Bring an action to recover damages not later than 2 years after the date of the violation. (b) File a complaint with the department not later than 1 year after the date of the violation. (2) An employee who prevails in an action brought under subsection (1)(a) may be awarded damages for 1 or more of the following: (a) Lost wages and fringe benefits. An award ordered under this subdivision must not include wages that the employee earned or could have reasonably earned less any expenses incurred by the employee as a result of obtaining, searching, or relocating for employment. (b) Punitive damages if it is established by clear and convincing evidence that the employer discharged the employee in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy and did so fraudulently or with malice. (3) The director shall enforce this act. The director shall establish a system using multiple means of communication to receive complaints of violations of this act and investigate complaints received by the department in a timely manner. (4) On receiving a complaint alleging a violation of this act, the department shall investigate the complaint and attempt to resolve it through mediation between the complainant and the subject of the complaint, or other means. The department shall keep complainants notified regarding the status of the complainants' complaint and any resultant investigation. If the department determines that a violation has occurred, the department shall issue to the offending employer a notice of violation and the relief required of the offending employer. The department shall prescribe the form and wording of notices of violation that must include the method of appealing the determination of the department. (5) The department may impose penalties and grant an employee or former employee payment of wages lost because of a wrongful discharge. The department is the trustee for the employee or former employee and shall distribute and account for money collected under this subsection. (6) An employer that willfully violates this act is subject to an administrative fine of not more than $500.00. Sec. 9. (1) Except as specifically provided in this act, this act does not limit or affect any rights guaranteed an individual by law. (2) This act applies to public employers and public employees, except to the extent that it is inconsistent with section 5 of article XI of the state constitution of 1963. (3) If a collective bargaining agreement or other contract that is inconsistent with this act is in effect for an employee on the effective date of this act, this act applies to that employee beginning on the date the collective bargaining agreement or other contract expires or is amended, extended, or renewed. (4) This act does not apply to an employee if a collective bargaining agreement or other contract in effect for the employee provides for discharge only if there is just cause. (5) This act does not limit an employee's right to bargain or contract with an employer for protections against wrongful discharge that are in addition to the employee's rights under this act. (6) An employer shall not require an employee to sign a waiver of the employee's rights under this act. A waiver of an employee's rights under this act is void. |
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| 2 | 2 | | |
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| 3 | 3 | | HOUSE BILL NO. 4448 |
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| 4 | 4 | | |
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| 5 | 5 | | A bill to prohibit employers from wrongfully discharging employees; to provide for the powers and duties of certain state and local governmental officers and entities; and to provide remedies. |
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| 6 | 6 | | |
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| 7 | 7 | | the people of the state of michigan enact: |
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| 8 | 8 | | |
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| 9 | 9 | | Sec. 1. This act may be cited as the "wrongful discharge from employment act". |
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| 10 | 10 | | |
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| 11 | 11 | | Sec. 3. As used in this act: |
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| 12 | 12 | | |
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| 13 | 13 | | (a) "Constructive discharge" means an employee's decision to terminate employment because of a situation created by an act or omission of the employer that an objective, reasonable person would find so intolerable that termination is the only reasonable alternative. Constructive discharge does not include the decision to terminate employment because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment. |
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| 14 | 14 | | |
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| 15 | 15 | | (b) "Department" means the department of labor and economic opportunity. |
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| 16 | 16 | | |
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| 17 | 17 | | (c) "Director" means the director of the department or the director's designee. |
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| 18 | 18 | | |
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| 19 | 19 | | (d) "Discharge" includes constructive discharge and any other termination of employment including, but not limited to, any of the following: |
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| 20 | 20 | | |
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| 21 | 21 | | (i) Resignation. |
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| 22 | 22 | | |
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| 23 | 23 | | (ii) Elimination of the job. |
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| 24 | 24 | | |
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| 25 | 25 | | (iii) Layoff for lack of work. |
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| 26 | 26 | | |
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| 27 | 27 | | (iv) Failure to recall or rehire. |
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| 28 | 28 | | |
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| 29 | 29 | | (v) Any other cutback in the number of employees. |
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| 30 | 30 | | |
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| 31 | 31 | | (e) "Employee" means an individual who works for an employer under an express or implied contract of hire. Employee does not include an individual who is an independent contractor. |
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| 32 | 32 | | |
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| 33 | 33 | | (f) "Employer" means a person that employs 1 or more employees. |
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| 34 | 34 | | |
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| 35 | 35 | | (g) "Fringe benefits" means any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, or pension benefit plan in effect on the date of a discharge. |
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| 36 | 36 | | |
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| 37 | 37 | | (h) "Just cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties or a disruption of the employer's operation. |
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| 38 | 38 | | |
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| 39 | 39 | | (i) "Lost wages" means the gross amount of wages that would have been reported to the Internal Revenue Service as gross income on form W-2 had employment not been terminated, and includes additional compensation deferred at the option of the employee. |
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| 40 | 40 | | |
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| 41 | 41 | | (j) "Person" means an individual or a sole proprietorship, partnership, corporation, association, or any other legal entity. |
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| 42 | 42 | | |
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| 43 | 43 | | (k) "Public policy" means a policy in effect on the date of a discharge concerning the public health, safety, or welfare established by law. |
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| 44 | 44 | | |
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| 45 | 45 | | (l) "Wrongful discharge" means a discharge if 1 or more of the following conditions exist: |
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| 46 | 46 | | |
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| 47 | 47 | | (i) The discharge was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy. |
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| 48 | 48 | | |
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| 49 | 49 | | (ii) The discharge was not for just cause and the employee had completed the employer's probationary period of employment. |
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| 50 | 50 | | |
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| 51 | 51 | | (iii) The employer violated the express provisions of the employer's own written personnel policy. |
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| 52 | 52 | | |
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| 53 | 53 | | Sec. 5. (1) Except as otherwise provided in subsection (2), an employer shall not wrongfully discharge an employee. |
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| 54 | 54 | | |
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| 55 | 55 | | (2) During a probationary period of employment, an employee is an at-will employee. An employer shall not establish a probationary period of employment that is longer than 3 months. There is not a probationary period of employment if either of the following apply: |
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| 56 | 56 | | |
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| 57 | 57 | | (a) The employer fails to establish the probationary period of employment before or at the time of hire. |
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| 58 | 58 | | |
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| 59 | 59 | | (b) The employer fails to give notice to the employee of the employee's probationary period of employment before or at the time of hire. |
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| 60 | 60 | | |
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| 61 | 61 | | (3) The following factors must be used to determine whether just cause exists: |
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| 62 | 62 | | |
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| 63 | 63 | | (a) Whether the employer did 1 or more of the following: |
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| 64 | 64 | | |
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| 65 | 65 | | (i) Notified the employee of the workplace policy or rule that the employee allegedly violated before the alleged violation occurred. |
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| 66 | 66 | | |
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| 67 | 67 | | (ii) Before discharging the employee, conducted a fair and objective investigation to determine if the employee violated a workplace policy or rule. |
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| 68 | 68 | | |
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| 69 | 69 | | (iii) Based on the investigation conducted under subparagraph (ii), obtained substantial evidence that the employee violated a workplace policy or rule. |
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| 70 | 70 | | |
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| 71 | 71 | | (iv) Applied the employer's workplace policies and rules fairly and without discrimination. |
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| 72 | 72 | | |
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| 73 | 73 | | (b) Whether the workplace policy or rule that the employee allegedly violated is related to reasonable business efficiency and performance expectations for the employee. |
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| 74 | 74 | | |
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| 75 | 75 | | (c) Whether the discharge was reasonably related to the seriousness of the employee's alleged violation, taking into consideration the employee's disciplinary record. |
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| 76 | 76 | | |
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| 77 | 77 | | Sec. 7. (1) If an employer violates this act, the employee affected by the violation may do either or both of the following: |
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| 78 | 78 | | |
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| 79 | 79 | | (a) Bring an action to recover damages not later than 2 years after the date of the violation. |
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| 80 | 80 | | |
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| 81 | 81 | | (b) File a complaint with the department not later than 1 year after the date of the violation. |
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| 82 | 82 | | |
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| 83 | 83 | | (2) An employee who prevails in an action brought under subsection (1)(a) may be awarded damages for 1 or more of the following: |
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| 84 | 84 | | |
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| 85 | 85 | | (a) Lost wages and fringe benefits. An award ordered under this subdivision must not include wages that the employee earned or could have reasonably earned less any expenses incurred by the employee as a result of obtaining, searching, or relocating for employment. |
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| 86 | 86 | | |
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| 87 | 87 | | (b) Punitive damages if it is established by clear and convincing evidence that the employer discharged the employee in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy and did so fraudulently or with malice. |
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| 88 | 88 | | |
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| 89 | 89 | | (3) The director shall enforce this act. The director shall establish a system using multiple means of communication to receive complaints of violations of this act and investigate complaints received by the department in a timely manner. |
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| 90 | 90 | | |
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| 91 | 91 | | (4) On receiving a complaint alleging a violation of this act, the department shall investigate the complaint and attempt to resolve it through mediation between the complainant and the subject of the complaint, or other means. The department shall keep complainants notified regarding the status of the complainants' complaint and any resultant investigation. If the department determines that a violation has occurred, the department shall issue to the offending employer a notice of violation and the relief required of the offending employer. The department shall prescribe the form and wording of notices of violation that must include the method of appealing the determination of the department. |
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| 92 | 92 | | |
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| 93 | 93 | | (5) The department may impose penalties and grant an employee or former employee payment of wages lost because of a wrongful discharge. The department is the trustee for the employee or former employee and shall distribute and account for money collected under this subsection. |
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| 94 | 94 | | |
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| 95 | 95 | | (6) An employer that willfully violates this act is subject to an administrative fine of not more than $500.00. |
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| 96 | 96 | | |
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| 97 | 97 | | Sec. 9. (1) Except as specifically provided in this act, this act does not limit or affect any rights guaranteed an individual by law. |
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| 98 | 98 | | |
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| 99 | 99 | | (2) This act applies to public employers and public employees, except to the extent that it is inconsistent with section 5 of article XI of the state constitution of 1963. |
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| 100 | 100 | | |
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| 101 | 101 | | (3) If a collective bargaining agreement or other contract that is inconsistent with this act is in effect for an employee on the effective date of this act, this act applies to that employee beginning on the date the collective bargaining agreement or other contract expires or is amended, extended, or renewed. |
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| 102 | 102 | | |
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| 103 | 103 | | (4) This act does not apply to an employee if a collective bargaining agreement or other contract in effect for the employee provides for discharge only if there is just cause. |
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| 104 | 104 | | |
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| 105 | 105 | | (5) This act does not limit an employee's right to bargain or contract with an employer for protections against wrongful discharge that are in addition to the employee's rights under this act. |
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| 106 | 106 | | |
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| 107 | 107 | | (6) An employer shall not require an employee to sign a waiver of the employee's rights under this act. A waiver of an employee's rights under this act is void. |
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