Whistleblower Protection for Minnesota Employees
To empower employees who report their employers’ unlawful conduct, federal and state law gives employees a right to sue employers who retaliate.
Unlawful workplace retaliation occurs when an employer discharges, disciplines, threatens, discriminates against, or penalizes employees because they report a violation of any federal or state law or rule, request an investigation of the employer, or refuse an illegal order.
Here are examples of employee conduct that employers may not retaliate against:
- speaking up about unlawful conduct done to them personally
- opposing or reporting discrimination or sexual harassment on behalf of a co-worker
- opposing employer’s failure to pay overtime
- reporting employer for violation of state or federal law
- reporting employer for OSHA or health violations
Employer retaliation against employees includes discharge, discipline, and threats, along with other forms of unlawful retaliation:
- Demotion
- Unjustified negative write-ups or evaluations
- Increased harassment
- Dead ending (no advancement)
- Unwanted transfer
- Loss of career opportunities
Minnesota’s employee whistleblower statute is provided in Minnesota Statutes section 181.932:
An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:
(1) the employee, or a person acting on behalf of an employee, in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official;
(2) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry;
(3) the employee refuses an employer’s order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason;
(4) the employee, in good faith, reports a situation in which the quality of health care services provided by a health care facility, organization, or health care provider violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm;
(5) a public employee communicates the findings of a scientific or technical study that the employee, in good faith, believes to be truthful and accurate, including reports to a governmental body or law enforcement official; or
(6) an employee in the classified service of state government communicates information that the employee, in good faith, believes to be truthful and accurate, and that relates to state services, including the financing of state services, to:
(i) a legislator or the legislative auditor; or
(ii) a constitutional officer.
The disclosures protected pursuant to this section do not authorize the disclosure of data otherwise protected by law.
The Minnesota Human Rights Act (“MHRA”) also prohibits retaliation against claimants. The MHRA defines retaliation as “any form of intimidation, retaliation or harassment . . . ”
The MHRA whistleblower statute is provided in Minnesota Statutes section 363A.15:
It is an unfair discriminatory practice for any individual who participated in the alleged discrimination as a perpetrator, employer, labor organization, employment agency, public accommodation, public service, educational institution, or owner, lessor, lessee, sublessee, assignee or managing agent of any real property, or any real estate broker, real estate salesperson, or employee or agent thereof to intentionally engage in any reprisal against any person because that person:
(1) opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter; or
(2) associated with a person or group of persons who are disabled or who are of different race, color, creed, religion, sexual orientation, or national origin.
A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment. It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1) or (2): refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).
Minnesota state court jurisprudence has not shown a strong employee-friendly policy in workplace retaliation claims. In Kidwell v. Sybaratic, Inc., 784 N.W.2d 220 (Minn. 2010), the Minnesota Supreme Court held that the whistleblower statute does not protect those employees who report suspected violations of law in the course of fulfilling the normal responsibilities of their position.
In Gagliardi v. Ortho-Midwest, Inc., 733 N.W.2d 171 (Minn. App. 2007), a woman was fired because her boyfriend had made a sexual harassment complaint on her behalf. The Minnesota Court of Appeals held that the Minnesota Human Rights Act (“MHRA”) does not prohibit an employer from retaliating against an employee for the actions of a third party, because the MHRA protects only the specific person who made the complaint. Id. This decision stands in contrast to federal law, which protects third party “whistleblowers.” See Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011).
Federal Law
Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e-2(a), contains anti-retaliation provisions which establish a cause of action for any employee who suffers retaliation from their employer for asserting their legal rights. Federal law is developing rapidly in this area. In federal employment law, it is possible to trace the shifting of policy back and forth between favoring employees and favoring employers. Recently, the Supreme court has shown a favor toward employers in workplace-related cases. Michael H. Tanick, Employee Retaliation Claims, Bench & Bar of Minnesota, Nov. 11, 2011. However, federal court policy in retaliation cases has been largely in favor of employees. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011).
The change in federal court jurisprudence began with a 2006 case, Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), in which the Supreme Court held that there is a possible action whenever an employer performs any action that might “dissuade a reasonable worker from making or supporting a charge of discrimination.” This definition requires a very fact-intensive legal analysis, which makes it nearly impossible to dispose of claims in summary judgment.
Making a Claim
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency responsible for enforcing federal discrimination laws. Most employers with at least fifteen employees, as well as most labor unions and employment agencies are covered by EEOC laws. If you think you have been discriminated against, the first step is to file a complaint with your local EEOC office. Their role is to investigate the facts, assess your allegations, and, if they find that discrimination occurred, to prosecute your case. Generally, you must file a charge within 180 calendar days from the date of the alleged discrimination. If there is a state or local agency enforcing your specific type of discrimination, then you have 300 days to file. Since 2006, the EEOC has experienced a large rise in the amount of reprisal claims being filed. Before 2006 the EEOC received less than 23,000 reprisal claims. Now they receive more than 33,000 each year.
The parallel state agency in Minnesota is the Minnesota Department of Human Rights (“MDHR”). The MDHR only takes complaints for violations of the Minnesota Human Rights Act, Minnesota Statute 363A. A charge must be filed with the MDHR within one year of the alleged discriminatory act.
Written by: Lucas Spaeth
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