Resurrection of whistleblower protection
On May 24, 2013, Minnesota Governor Mark Dayton signed into law transformative amendments that provide more protection for whistleblowers. This is an exceptional development at a time when whistleblowers are increasingly under attack. In fact, President Barack Obama has prosecuted more whistleblowers than all other Presidents combined, and the Obama Administration has done so by advancing novel theories to employ little used statutory provisions in extremely aggressive ways. As part of the crackdown, the Obama Administration has also resorted to spying on investigative journalists who are believed to have communicated with whistleblowers. A recent documentary, War on Whistleblowers, offers a powerful accounting of the troubling dynamic that confronts the nation.
When assessing the role of whistleblowers, it is important to recall the practical reality that employees are often the first to learn about conduct that threatens public safety and the common interest. Allowing employers or others to retaliate against such employees for reporting unsafe or other unlawful conduct undermines transparency and, therefore, accountability in the public and private sectors alike. Accordingly, the Minnesota Legislature and Governor Dayton did the right thing by correcting the improper limitations on whistleblower protections that the Minnesota Supreme Court had created through a series of opinions discussed in prior postings here.
Under the recently amended law, both public-sector and private-sector employees are now protected when they in good faith report – verbally or in writing – any actual or apparent violation of a legislatively, administratively, or judicially established standard by the employer or a third party. Minn. Stat. § 181.931, Subds. 4, 6, as amended; Minn. Stat. § 181.932, Subd. 1, as amended. In that regard, good faith reports include anything that is not akin to fraud. Minn. Stat. § 181.931, Subd. 4, as amended. Among other things, this means that employees are protected when making reports even if doing so is part of their job. Id.; Minn. Stat. § 181.932, Subd. 1, as amended. Moreover, the amended law protects those who report anticipated violations. Minn. Stat. § 181.932, Subd. 1, as amended. Significantly, an employee need not be fired or suffer other economic loss to experience adverse action. Minn. Stat. § 181.931, Subd. 5, as amended. Retaliation for purposes of a whistleblower claim is any “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.” Id.
An employer who violates the law, as amended, will face a jury award with the possibility for substantial emotional distress and economic damages as well as the potential for punitive damages. Minn. Stat. § 181.935. Furthermore, that employer will be ordered to pay any such employee’s reasonable attorney’s fees and litigation costs – on top of the employer’s own attorney’s fees and litigation costs. Id. Going forward, then, whistleblowers should be respected and heeded rather than targeted for retaliation and discharge.
