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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6157 June 23, 1983 LABOR AND EMPLOYEES: Applicability of the Michigan Whistle-blowers' Protection Act to railroad employees WHISTLE-BLOWERS' PROTECTION ACT: Applicability to railroad employees A railroad worker, covered by 45 USC 441, may elect to invoke whistle-blowers' protection under either the federal statute or under the Michigan Whistle-blowers' Protection Act. Honorable H. Lynn Jondahl State Representative State Capitol Building Lansing, Michigan You have requested my opinion whether employees covered by the protection and rights of employees section of the Federal Railroad Safety Act of 1970, 94 Stat 1815 (1980), 45 USC 441, are also entitled to the protections afforded in Michigan's Whistle-blowers' Protection Act, 1980 PA 469; MCLA 15.361 et seq; MSA 349.23 et seq. 1980 PA 469, supra, Sec. 2 provides: 'An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.' 45 USC 441 has a similar purpose: '(a) A common carrier by railroad engaged in interstate or foreign commerce may not discharge or in any manner discriminate against any employee because such employee, whether acting in his own behalf or in a representative capacity, has-- '(1) filed any complaint or instituted or caused to be instituted any proceeding under or related to the enforcement of the Federal railroad safety laws; or '(2) testified or is about to testify in any such proceeding.' The term 'employee,' as defined in 1980 PA 469, supra, Sec. 1(a), includes employees also covered by the Federal Railroad Safety Act of 1970: "Employee' means a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied. Employee includes a person employed by the state or a political subdivision of the state except state classified civil service.' Although the protected activities of the two acts are similar, the remedies differ. 1980 PA 469, supra, Sec. 3 provides for a civil remedy in the circuit court for injunctive relief or actual damages, or both. 45 USC 441(c), on the other hand, provides that any dispute arising thereunder may be submitted to the National Railroad Adjustment Board in accordance with procedures set forth in 45 USC 153. Your question raises the issue whether a railroad employee covered by the federal act may seek relief under the state act. Answer to your question is contained in the Federal Railroad Safety Act, which, at 45 USC 441(d), provides: '(d) Whenever an employee of a railroad is afforded protection under this section and under any other provision of law in connection with the same allegedly unlawful act of an employer, if such employee seeks protection he must elect either to seek relief pursuant to this section or pursuant to such other provision of law.' (Emphasis supplied.) Thus, a covered employee may elect between seeking relief under the Federal Railroad Safety Act or under 'any other provision of law.' Since the Michigan Whistle-blowers' Protection Act is another provision of law, the employee may elect to seek protection under the Michigan act. (1) It is my opinion, therefore, that a railroad employee covered by 45 USC 441, may elect to seek protection under either the federal statute or under the Michigan Whistle-blowers' Protection Act, supra. Frank J. Kelley Attorney General (1)
'A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under or regulated by this act or has testified or is about to testify in such a proceeding or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.'
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