The Minnesota Whistleblower Act (MWA) prohibits employers from discharging, disciplining, threatening, discriminating against or penalizing an employee in retaliation for, among other things, making a good faith report of a violation of law. In the 2013 legislative session, the Minnesota Legislature passed amendments to the MWA that expand the protections afforded whistleblowers by providing definitions for three terms—”good faith,” “report,” and “penalize”—that were previously undefined in the MWA. These amendments became effective on May 25, 2013.
Good Faith. Prior to the amendments, Minnesota courts had held that a “good faith” report was one made “for the purpose of exposing an illegality.” Now, a report is made in good faith if the employee did not make the report knowing that it was false or in reckless disregard of the truth. We can anticipate that plaintiffs will argue that the purpose of the report no longer matters.
Report. The amendments define the term “report” to mean an employee’s communications about “an actual, suspected, or planned violation” of law. By including “planned” violations, the MWA may protect an employee who reports suspected illegal activity that has not yet occurred—and might never occur. The MWA now also protects employees who report not only alleged violations of statutes or regulations, but also alleged violations of common law, such as defamation, fraud, or breach of contract. Additionally, the new definition of “report” protects employees who blow the whistle on “third parties,” such as suppliers or customers. Employees may gain protection for a report that is not even related to their employer.
Penalize. The amendments to the MWA define “penalize” as “conduct that might dissuade a reasonable employee” from making a report. This broad definition may not require the employer’s actions to be related to the workplace or the individual’s employment. The definition of “penalize” now also protects former employees against post-employment actions.
We’ve already seen an increase in claims under the MWA in recent years, and anticipate that we may see even more as a result of these amendments. To prevail on a claim, an employee must prove there was a causal relationship between his or her report and an adverse action. Therefore, employers should take care to avoid creating any suggestion of a connection between an employee’s complaint of unlawful conduct (whether actual, potential or planned) and an action taken against the employee. They can do so by paying attention to the timing of the action and the employee’s complaint, as close timing can create an inference of retaliation. Employers should also be sure that their actions are supported by well-documented legitimate, non-retaliatory business reasons.