Who Gets Whistleblower-Retaliation Protection in Minnesota?

The answer is broader than you might think.

It is illegal for employers in Minnesota to retaliate against any employee who has opposed illegal activities or reported actual, suspected, or planned illegal activities.

Photo by tupungato/iStock / Getty Images
Photo by tupungato/iStock / Getty Images

That’s a lot more to unpack than meets the eye.

Let’s start with what Minnesota law makes illegal: "[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee" because the employee is a whistleblower. The most common form of whistleblower reprisal we see is the retaliatory termination.  But the courts, all the way up to the U.S. Supreme Court, have ruled repeatedly that illegal retaliation can take many forms.  Quite simply, it’s a classic “smell test.” Courts will ask whether the employer’s action would dissuade or discourage another employee from reporting illegal activity; if it would, then that’s retaliation.

If you’re experiencing something that looks and feels like retaliation, the next step is determining whether the law protects the kind of activity you opposed or reported.

Under the Minnesota Whistleblower Act, employees are only protected when they’ve objected to or reported actual, suspected, or planned illegal conduct. The important thing there: the complained-about conduct must be illegal.  Not just unfair.  Not just unethical.  Not just arbitrary.  Not just a violation of company policy.  ILLEGAL.

Here’s the remarkable thing, though.  Employees who report concerns don’t need to be lawyers—they don’t need to use the magic word “illegal” when they report their concerns.  Employees only need to have reported—orally or in writing—facts, which if assumed true, implicate a violation, suspected violation, or planned violation of an actual law, statute, or regulation. It's up to the lawyers to find the actual law, not the whistleblower.

Another remarkable thing: the whistleblower is still protected by the law even if mistaken on the facts. In other words, if you think the company was breaking the law, but they weren't, yet they still retaliated against you for complaining, you are still protected.