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Court Finds Job Applicant’s Claim of Retaliation for Filing for Unemployment Benefits Not Actionable

September 14, 2012

The Sixth Circuit Court of Appeals recently ruled that Michigan law does not recognize an exception to the employment at-will doctrine when an employer refuses to hire or rehire an individual in retaliation for that person filing for unemployment benefits. Click here to view the Court’s opinion.

In Berrington v. Wal-Mart Stores, Inc., an at-will Wal-Mart employee, William Berrington, was terminated for not returning to work at the end of a leave of absence. Wal-Mart, however, encouraged Mr. Berrington to reapply for employment after 90 days. Upon his termination, Mr. Berrington applied for unemployment benefits, which Wal-Mart opposed. Ninety days after he was terminated, but before the dispute over unemployment benefits was resolved, Mr. Berrington reapplied for employment as Wal-Mart had suggested. When he was not rehired, he claimed that Wal-Mart was retaliating against him because he had filed for unemployment benefits.

Mr. Berrington alleged that Wal-Mart’s retaliation in refusing to rehire him violated Michigan public policy. The district court dismissed Mr. Berrington’s claim. The appeals court affirmed this decision and held that all recognized public policy exceptions to at-will employment involve an employment relationship, and that an “employee’s right to be hired or rehired... has never been recognized as actionable... on public policy grounds.”

Accordingly, although it may be actionable retaliation to terminate an employee for filing for unemployment benefits, this case stands for the proposition that refusing to rehire a former employee for filing for unemployment benefits is not actionable. The Michigan Supreme Court has not ruled on this issue. Further, there are many other situations where the failure to rehire a former employee may be actionable.

Honigman will continue informing you about developments in the area of retaliation. If you have any questions regarding this important issue, please contact one of our Labor and Employment Department attorneys listed here.

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