Minnesota Legislature Modifies Whistleblower Statute

by Littler

On May 24, 2013, Minnesota Governor Mark Dayton signed into law a bill that the plaintiff's bar is likely to argue expands the scope of whistleblower protections for both public and private sector employees under the Minnesota Whistleblower Act ("MWA").  The bill, originally touted as a narrow expansion of protection afforded to certain state employees, adds new statutory definitions that apply to private employers as well. 

Originally passed in 1987, the MWA prohibits employers from discharging, disciplining, threatening, or penalizing an employee in retaliation for making a good faith report of a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer, governmental body, or law enforcement official.1  It also prohibits retaliation against an employee for participating in an investigation or hearing instigated by a public body, refusing an employer's order to violate the law, or reporting a situation regarding the quality of healthcare services provided by healthcare institutions.2  If successful under the MWA, a plaintiff can recover damages, including wage loss and emotional distress, as well as attorney's fees and costs.

Good Faith

The MWA did not previously define the term "good faith," but the Minnesota courts did so through case law setting forth the parameters for what constitutes a good faith report.  Prior to the current amendment, courts required that an employee make a good faith report "for the purpose of exposing an illegality."3  The statute now defines the term "good faith" as "any statements or disclosures" as long as the statements or disclosures are not knowingly false or made in reckless disregard of the truth.4  It is likely that the plaintiff's bar will argue that this new definition protects any statement, regardless of whether the individual sought to "blow the whistle" on any wrongdoing, as long as the individual believed the statement to be true or the statement was not demonstrably false. 


The new law also defines "penalize" as "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."5  Prior to this amendment, Minnesota courts had held that an adverse employment action required a material change in the terms or conditions of employment, and had not adopted the "dissuade" standard enunciated by the U.S. Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White.6 The new definition of "penalize" appears to adopt the Burlington Northern standard and potentially expands adverse actions beyond those that result in a material change in the terms or conditions of employment.    

The amendment also added new whistleblower protection for post-employment actions.  Minnesota courts had previously held post-employment actions were not covered by the MWA because the statute only protects "employees" as defined in Minn. Stat. § 181.931, subd. 2. 


The new law defines a 'report" as any "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."7  By adding "planned violation of law," we expect that the plaintiff's bar will assert that whistleblower coverage now extends to situations in which the purported wrongdoing has not yet occurred.  In addition, new protection may be afforded to employees who report unlawful conduct by anyone, rather than just employer conduct. 

Additionally, the MWA now covers reports of suspected violations of common law as protected whistleblower conduct.  This appears to be a substantial expansion of the scope of the statute.  For example, the report of an alleged breach of a contract may now be considered protected conduct under the MWA.

Implications for Employers

Plaintiffs will undoubtedly argue that the recent amendments to the MWA effectively overrule decades of Minnesota case law.  Whistleblower retaliation cases have increased dramatically in the past decade, and the amendments may lead to even more whistleblower lawsuits.  Employers should carefully investigate employee allegations of wrongdoing and document the steps taken in those investigations.  Liability will continue to hinge on whether there was a causal connection between the report and the alleged adverse employment action.  Strong documentation regarding both the investigation and the reasons for any adverse action against an employee will remain critically important in avoiding whistleblower liability in Minnesota.

1 Minn. Stat. § 181.932, subd. 1(1).

2 Minn. Stat. § 181.932, subd. 1(2-4).

3 Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2002).

4 Minn. Stat. § 181.931, subd. 4. 

5 Minn. Stat. § 181.931, subd. 5. 

6 548 U.S. 53 (2006).

7 Minn. Stat. § 181.931, subd. 6. 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.