Who is a whistleblower

Many talk about a whistleblower being a current or former employee who recovers damages from an employer because of retaliation in response to a report about apparent or actual employer misconduct. As a matter of common sense, that is an accurate understanding of a whistleblower. Unfortunately, the development of the law does not always seem to reflect common sense. In fact, several recent decisions in Minnesota have deviated from the plain meaning of the explicit language of the law commonly referred to as the Minnesota Whistleblower Act.

A regrettable line of employment law opinions from the Minnesota Supreme Court and the Minnesota Court of Appeals has been interpreted to mean that employees cannot be a “whistleblower” and, therefore, recover damages or attorney’s fees and litigation costs from employers if any one of a number circumstances exist. Those factors include if a statute or regulation does not actually apply to the employer’s conduct, if the employer already purportedly knew about the conduct reported by the employee, if the employee’s job duties supposedly required him or her to report the employer’s conduct, or the employee’s report was not to protect third parties or advance public policy. See, e.g., Kidwell v. Sybritic, 784 N.W.2d 220 (Minn. 2010); Kratzer v. Welsh Cos., LLC, 771 N.W.2d 14 (Minn. 2009). This narrowing of the protections for employees directly conflicts with the governing statutory language: “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 . . . the employee, or a person acting on behalf of an 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.” See Minn. Stat. § 181.932, Subd. 1(a) (emphasis added).

Fortunately, the Minnesota Legislature is now considering amendments to restore the integrity of the statutory regime. There is reason for optimism about this initiative because the court opinions have signficantly departed from the Legislature’s original intent – as manifested by clear statutory language. If the proposed legislative fix becomes law, employees everywhere and the broader public interest will benefit. Even if the legislative fix does not occur, however, employees may still be able to pursue whistleblower claims through a savvy legal strategy and corresponding counsel.

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