Shadrach's whistleUpdate (August 9, 2017): A significant win for Minnesota whistle-blowers this week! An employee who confronts his boss about his boss’ illegal conduct and, as a result, is fired may be considered a whistle-blower under Minnesota law. In light of a recent amendment to the statute, the “good faith” requirement for a whistle-blower does not mean that the whistle-blowing was intended to “expose illegality.”

Congratulations to Plaintiff Mr. Friedlander and his team of lawyers from Halunen Law, Nichols Kaster, and Apollo Law LLC.

Original post (December 2, 2016): This week, U.S. District Court Judge Susan R. Nelson (D. Minn.) certified a legal question to the Minnesota Supreme Court, a relatively rare process used by federal courts to get direction from the highest state court as to issues of state law.

At issue in Friedlander v. Edwards Lifescience is the question of whether an employee confronting his boss about the boss’ own intentional wrong-doing constitutes protected conduct under the Minnesota Whistleblower Act (“MWA”).

How is it “blowing the whistle” to report wrongful conduct directly to the wrong-doer? What good does that do?

On the other hand, let’s say, hypothetically, that Mr. Friedlander was fired solely due to his confronting his boss about his boss’ unlawful conduct. Shouldn’t Minnesota citizens get protection from this?

Then there is the “meta question.” Who is supposed to answer the previous questions? The Minnesota Supreme Court? The Minnesota legislature?

The task seems to fall to the Minnesota Supreme Court to interpret the legislature’s intent in passing the MWA in the first place and then amending it.

As is so often the case when lawyers (and courts) cannot agree on the meaning of a statute, the MWA is not a “model of clarity:”

In relevant part, that Act provides that “[a]n employer shall not discharge . . . an employee . . . because: (1) the employee . . . in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer. . . .” Minn. Stat. § 181.932, subd. 1.

What does “in good faith” mean? If I report a violation to the intentional wrong-doer, is that a “good faith report of a violation”?

What does “reports” mean? The statute offers no definition. If I tell an intentional wrong-doer that he is committing an illegal act, can I be said to have “reported” the wrong-doing?

These are critical questions for many Minnesota whistle-blower cases and presumably we will get an answer in the next 12 months.

[Editorial aside: The allegations in the Friedlander case make the plaintiff seem sympathetic. After Friedlander  stood up to the wrong-doer,  Friedlander’s boss allegedly ordered Friedlander to pay for a lunch on a business trip and then fired Friedlander for submitting the charge as a business expense.]

One thought on “How Hard Do Minnesota Whistle-blowers Have to Blow Their Whistles?

  1. Josh Williams

    Thanks for the post. A few comments:

    * The employment bar informally calls it the “Minnesota Whistleblower Act,” but that’s not what the legislature called it. Rather, the relevant section is titled “Disclosure of Information by Employees.” Accordingly, it makes sense that the legislature didn’t bake in a requirement that only reports made for the purpose of exposing an illegality count as activity that triggers MWA protection. Nonetheless, this was the judge-made rule for several years.

    * In 2013, the legislature amended the MWA to fix this problem, and clearly and unambiguously defined “good-faith” as statements that are not “false or…are in reckless disregard of the truth.” Minn. Stat. Sec. 181.931, Subd. 4.

    * “And where, as here, the words of a statute are unambiguous, the ‘judicial inquiry is complete.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-99 (2003). In other words, there is no need to dive into the legislative history here to tease out what the legislature meant, as it already told us what it meant in the statute. This is logical, as there would be no point in a legislative fix if the outcome was that the amendment didn’t abrogate pre-amendment caselaw standing for the “expose-an-illegality” rule.

    * Given that several courts have continued to apply the pre-2013 amendments “expose-an-illegality” rule, Judge Nelson made the right call. But this case illustrates one of the things I find incredibly frustrating as a plaintiffs’ employment lawyer, namely, that it seems we *always* need to cite a judicial opinion saying what a statute means, even when the statute is unambiguous.


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