Minnesota Supreme Court Refuses to Expand Exception to Employment-at-Will Doctrine

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The Minnesota Supreme Court rang in 2014 with an employer-friendly decision on the at-will employment rule. On January 2, in Dukowitz v. Hannon Security Services (No. A11-1481), the state’s highest court held that the public-policy exception to the employment-at-will rule does not apply to an employment termination resulting from an employee’s application for unemployment benefits. This is a key holding for employers, as it signifies the court’s reluctance to further chip away at the common law employment-at-will doctrine.


Jane Kay Dukowitz worked for Hannon Security Services as a security officer.  She worked evening shifts.  In September of 2008, Dukowitz took a temporary daytime position.  In connection with this switch, she signed a document acknowledging that the position might not be available after the holiday season. In December, her supervisor told her that the daytime position would not be available after the end of the month and that Hannon did not have any other hours available for her. Dukowitz claims that when she told her supervisor that she would have to apply for unemployment compensation benefits “to make ends meet,” her supervisor turned to another supervisor and asked, “should we term her?” Dukowitz claims that she begged her supervisor not to terminate her employment and asked to be put on a “floating shift” to pick up available hours.

Dukowitz filed for unemployment benefits on December 21, 2008. Her daytime position became unavailable two days later. Hannon terminated her employment on March 13, 2009. Dukowitz claims Hannon fired her for seeking unemployment benefits. Hannon claims it terminated Dukowitz’s employment for other, legitimate reasons.

Dukowitz filed suit for wrongful discharge, claiming that Hannon violated Minnesota public policy by terminating her employment in retaliation for her application for unemployment benefits. The district court sided with Hannon; the Minnesota Court of Appeals affirmed and Dukowitz appealed.

The Minnesota Supreme Court’s Decision

The Minnesota Supreme Court set out to decide “whether the public-policy exception to the employment-at-will rule applies to a termination resulting from an employee’s application for unemployment benefits.” Dukowitz argued that the court’s decisions in the well-known cases of Phipps v. Clark Oil & Refining Corp. (1987) and Nelson v. Productive Alternatives, Inc. (2006), “establish a cause of action for wrongful discharge if an employee can identify a clear mandate of public policy that the employer violated when it discharged the employee.” Alternatively, she argued that the court should recognize a wrongful discharge cause of action under the facts presented by her case. The court found both of Dukowitz’s arguments unpersuasive.

First, the court disavowed Dukowitz’s notion that she had a cause of action under the Phipps and Nelson cases. In Minnesota, employment is generally “at will” such that an employer may discharge an employee for any reason or no reason so long as it is not for an unlawful reason. The Phipps decision recognized a narrow public-policy exception to this rule, namely, that “an employee may bring an action for wrongful discharge if that employee is discharged for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law.” In Nelson, the court held that the common-law cause of action recognized in Phipps survived the enactment of Minnesota’s Whistleblower Act (Minn. Stat. § 181.931-.935).  Dukowitz urged the court to interpret Phipps more broadly, to include “an exception to the employment-at-will rule for any violation of a clear mandate of the state’s public policy.” The court rejected that argument as “inconsistent with the reasoning of Phipps” and reiterated that Phipps and Nelson “recognize a common-law cause of action for wrongful discharge only in those circumstances in which a termination is the result of an employee’s refusal to do an act that the employee, in good faith, believes to be illegal.”

Second, the court declined to recognize a new cause of action for wrongful discharge for terminations resulting from an employee’s application for unemployment benefits. The court reached this conclusion for two reasons: (1) due to the court’s reluctance to take on the role of determining public policy, as this task is “usually better performed by the legislature”; and (2) because the Minnesota legislature “has already delineated the consequences for an employer that interferes with an employee’s application for unemployment benefits” through Minn. Stat. §268.192 (which states that an employer who “directly or indirectly. . . obstruct[s] or impede[s] an application or continued request for unemployment benefits” is guilty of a misdemeanor), and Minn. Stat. § 268.184 (which provides administrative and criminal penalties for employer misconduct relating to administration of the unemployment insurance program). In discussing the latter point, the court emphasized that “the Legislature has not created a civil action for retaliation in Minnesota’s unemployment-insurance statutes” like it did in the workers’ compensation statutes and the Whistleblower Act.

Of note, Justice Wright filed a detailed dissent, which Justice Page joined. The dissent argued that Dukowitz’s contention that Phipps implicitly recognized a broader cause of action for wrongful discharge is “equally plausible.” The dissent also emphasized that “[a]s a common-law court, we have the power to recognize and abolish common law doctrines” and that “as society changes over time, the common law must also evolve.” Moreover, the dissent argued, “the mere existence of another remedy is not sufficient to crowd out this common-law wrongful-discharge claim.” Finally, the dissenting justices pointed out that “[o]nly a small minority of states that have recognized the public-policy exception to the employment-at-will rule limit it to an employee’s refusal to violate the law or report a violation of law.” Under this reasoning, the dissent urged that Dukowitz should have a cause of action for wrongful discharge.

Implications of the Dukowitz Decision

The Dukowitz ruling is undoubtedly a positive one for employers, as it demonstrates the Minnesota Supreme Court’s reluctance to expand the scope of the public-policy exception to the employment-at-will rule. However, employers are well-advised to continue to monitor this issue, as Dukowitz is likely not the last case that we will see in this area. Indeed, some plaintiffs’ attorneys may be bolstered by the dissent’s reasoning and may make similar arguments to continue to push for further expansion of the exceptions and new causes of action. Furthermore, it is possible that the legislature could address these issues by enacting new or revised statutes. As always, employers are well-advised to remain aware of the existing laws that may come into play when making employment decisions, such as the unemployment, workers’ compensation, and whistleblower statutes discussed by the court in Dukowitz.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 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.