Since 1987, a Minnesota statute has protected employees against being discharged, disciplined, discriminated against, or penalized based on the employee’s good faith report of an actual or suspected violation of any federal or state law or rule adopted pursuant to law. See Minn. Stat. § 181.932. Employers and employees have disputed the parameters of that law through litigation and judicial opinions during the intervening years.
In 2013, the Minnesota Legislature amended the statute in an effort to clarify certain of its terms and answer some of these disputes. In doing so, the Legislature appears to have significantly expanded the boundaries of this law. The amendments became effective May 24, 2013. See H.F. No. 542.
What is a Report? The amendment provides that a report “means a verbal, written, or electronic communication by an employee about an actual, suspected, or planned violation of a statute, regulation, or common law, whether committed by an employer or a third party.” While it was believed that the law alleged to be violated was limited to statutory or regulatory provisions, the 2013 amendment expands the coverage of the statute to common law principles as well. Another change is that the protected report may be made regarding a “planned violation” of law. The amendment also clarifies that the violation may be committed by a third party, as well as by the employer.
What is Good Faith? The amendment states that good faith “means conduct that does not violate section 181.932, subdivision 3.” That subdivision provides that an employee may not make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth. This change will make it more challenging for an employer to establish an employee’s lack of good faith.
What does Penalize include? The amendment notes that penalize “means conduct that might dissuade a reasonable employee from making or supporting a report, including post-termination conduct by an employer or conduct by an employer for the benefit of a third party.” This changes addresses the parameters of retaliatory adverse employment action established by the United State Supreme Court in Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 U.S. 53 (2006).
Takeaway: By its recent amendments to the Minnesota whistleblower statute, the Minnesota legislature has significantly expanded the range of potential claims under that law. As a result, employers should continue to be vigilant in considering and addressing employee complaints about actual or alleged violations of the law.