Sometimes employees have to make some tough decisions when they are faced with actions the employee perceives as wrongdoing. What do they do? Do they report it to their superior? Do they report it to the authorities? Do they quit? What happens if they report it and get fired? Are there protections?

Minnesota has laws to provide protection to employees that decide to “blow the whistle” on their employer, aptly named “whistleblower” laws. Minnesota Statute Section 181.932 states, in part:

An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalized 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 the employee, in good faith, reports a violation or suspected violation of any federal or state 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 clinical or ethical standard and potentially places the public at risk of harm; or
  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.

Kidwell v. Sybriatic, Inc., 784 N.W.2d 220 (Minn. 2010)

Minnesota’s whistleblower law seems pretty straightforward, however, recent case law has left plaintiffs and attorneys that practice in this area with many questions.

The Kidwell case involved the firing of an in-house counsel after he complained to management about the company’s “pervasive culture of dishonesty,” including the allegation that the company had concealed documents subject to discovery in pending litigation. He was fired soon after.

The jury awarded a $197,000 verdict to the fired lawyer, but it was appealed by the company. The Minnesota Court of Appeals reversed, but the Minnesota Supreme Court granted review of the case. The Minnesota Supreme Court ultimately upheld the court of appeals but provided different rationale. Interestingly, it took the Minnesota Supreme Court 16 months to reach a decision. The fact that the decision was merely a plurality decision explains the long wait.

The Minnesota Supreme Court found that the lawyer was not covered by the whistleblower statute because he was merely carrying out his job duties as in-house counsel. In other words, it was his job as a lawyer to determine when a company is doing something illegal.