Are Minnesota’s whistleblower protections effectively exposing illegality or simply blowing hot air?
By Kasia Kokoszka
The Minnesota Whistleblower Act (MWA), Minn. Stat. §181.931, et seq., protects employees from retaliation for making a good faith report of unlawful conduct to their employer. Before it was amended in 2013, the MWA did not define “report” or “good faith.” Given the statute’s lack of clarity on these threshold issues, Minnesota courts developed judicial requirements interpreting what constituted a good faith report under the MWA.
Courts looked to the content of the report and the whistleblower’s purpose to determine if the report was made in good faith, focusing on whether the report was made with the purpose of exposing an illegality.1 In effect, this requirement undermined the purpose of the MWA because it required employees to act with the purpose of blowing the whistle, which paradoxically meant that individuals who simply discovered and reported unlawful conduct as part of their job duties were generally not protected.2
Some courts continued to apply these interpretations even after the 2013 amendments created new legal standards by defining “report” and “good faith.”3 The Minnesota Supreme Court clarified in Friedlander v. Edwards Lifesciences that Minnesota courts should look only to the statutory definitions and the content of the report to determine if the whistleblower made the report in good faith.4 This decision held that the 2013 amendments superseded the judicially imposed rules and courts should no longer evaluate the motive of the whistleblower in determining whether a report was made in good faith.5
Friedlander seemed to significantly lower the bar for whistleblower claims, but it was unclear whether the new legal standards actually improved plaintiffs’ chances of prevailing in the preliminary stages of litigation. Now a quantitative and qualitative analysis of opinions and orders since Friedlander has revealed very limited support for the proposition that the decision produced an uptick in MWA claims or that the new legal standards enable more claims to move past summary judgment.6
Publicly available opinions and orders demonstrate that the vast majority of whistleblower claims still fail after Friedlander, because courts find there is no discernible report, insufficient evidence of causation, or the plaintiff is unable to meet the burden of persuasion under the McDonnell-Douglas burden-shifting framework. So despite the apparently plaintiff-friendly change in legal standards, most employers can still likely avoid liability or elevated settlement payouts if the report does not implicate unlawful conduct or there exist legitimate and non-retaliatory reasons for the adverse employment action.
Overview of the MWA’s legal standards
The MWA defines a report as “a 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 Despite this broad definition of what may constitute a protected report, courts in Minnesota closely scrutinize the presentation and the content of the complaint to determine if it is protected under the MWA. Even though there is no formality requirement, the content of the report needs to contain a distinguishable allegation of a legal violation to fall within the purview of the MWA. Expressing concerns about workplace processes and policies, even if it may indirectly imply wrongdoing, does not constitute protected conduct.8 Similarly, general discussions at a staff meeting that do not implicate a violation of the law do not meet the standard of protected conduct.9
These interpretations suggest that employers realistically do not need to be concerned about the possibility of employees taking ordinary workplace conversations and retroactively framing them as whistleblowing activities. The MWA also requires that the employee in question must have made the report to either the employer, a governmental body, or a law enforcement official.10 Unless a report is directed to one of the entities outlined in the statutory scheme, public whistleblowing is not protected conduct.11 Employees airing their grievances with coworkers or in a public forum are not engaging in protected conduct under the current legal standards.
To maintain its protected status, a report must also indicate “a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law.”12 The 2013 amendments added common law claims, including contract and tort claims, as a potential category of violations. But courts remain concerned with construing the MWA too broadly and “have recognized that a mere report of behavior that is problematic or even reprehensible, but not a violation of the law, is not protected conduct under the Whistleblower Act.”13
In 2009, the Minnesota Supreme Court established in Kratzer that the employee is not required to identify the exact law that is violated in the report, but the content of the report must at least implicate the law in question.14 To maintain their protected status, the content of the report must implicate an actual law that exists, even if the employee is ultimately mistaken about the underlying facts.15 Judicial opinions after Friedlander continue to uphold Kratzer and hold that while reports containing mistakes of fact may be protected, complaints that misinterpret the law or do not implicate any violation of the law are not protected.16
In practice, courts have a fair amount of discretion in their fact-finding powers to discern whether a report implicates a violation of the law, particularly if the report involves an alleged violation of an employer’s internal policy. Unless it also independently implicates a violation of the law, courts will find this type of report is unprotected.17 Similarly, reports in which the factual allegations taken at face value do not violate the law in question are not protected.18
However, a recent decision expanded the scope of common law violations by indicating that the category includes breach of collective bargaining agreements. Specifically, the Minnesota Court of Appeals held that filing a grievance is protected conduct implicating a common law violation, because it reports a violation of a collective bargaining agreement.19 The legal standard for what constitutes a violation of the law is fairly broad and implicitly recognizes that many potential whistleblowers can recognize unlawful conduct even if they may not be able to identify the exact law in question.
Under the current legal standard, courts require the legal violation to be reasonably apparent from the content of the report, likely in an effort to prevent disgruntled former employees from construing whistleblower claims out of ordinary workplace complaints. Therefore, despite the broad language of the statute, the effect of the current standard may not differ significantly from the previous approach—because complaints about personal work issues, without a violation of any law, do not constitute statutorily protected conduct.20 Statutorily protected reports under the MWA are not determined based solely on the subjective perception of the whistleblower and need to be reasonably identifiable as a report of unlawful conduct. Even under the current legal standards, courts would be unlikely to find that “nearly invisible and/or indistinguishable reports” merit the protections of the MWA.21
Recent changes to the MWA did not affect causation
The 2013 amendments and Friedlander created a more objective standard for determining what constitutes protected conduct, but these changes to the law did not affect the most significant challenge most MWA claims face. The MWA adopts a general causation standard as a necessary element to establish a prima facie case.22 Minnesota is unique as a jurisdiction, compared to other states that also have whistleblower statues, because of the breadth of protections the MWA offers and the fairly generous causation standard.23 While this standard does not appear to present an onerous burden, it leaves to judicial discretion how much other factors (such as job performance issues or the employer’s business judgment) should color a court’s analysis of retaliatory motive.
Based on a survey of publicly available orders and opinions since Friedlander, plaintiffs lost every MWA claim in which the court indicated that causation was one of the key deciding issues.24 Specifically, causation was at issue in 10 out of 27 decisions surveyed, and plaintiffs lost in 100 percent of these cases since the Friedlander decision.25 In interpreting the causation standard of the MWA, Minnesota courts particularly focus on temporal proximity, employee performance issues, and misconduct.
Plaintiffs are very likely to lose if the principal evidence of causation is temporal proximity, unless the proximity is so close that it supports a retaliatory motive.26 Precedent is clear that gaps of several months on their own are not probative of temporal proximity or retaliatory motive.27 However, it is difficult to imagine when the temporal proximity would be sufficient to establish a retaliatory motive considering that courts in Minnesota have indicated that not even a lag of two days between the protected conduct and adverse employment action would support this inference.28
Courts also grant considerable deference to evidence of non-retaliatory reasons, such as poor performance, insubordination, and violation of any company policy.29 This is not particularly surprising when you consider that at-will employment is the general rule in American employment law, but it creates significant advantages for employers in MWA cases. There are no perfect employees, and under close scrutiny, nearly everyone would likely have some attendance or performance issues, especially over longer terms of their employment. Employers who bear some retaliatory motive but can point to employee deficiencies as the legitimate reasons for the adverse employment action are very likely to prevail in MWA cases because of the weight courts give these explanations when evaluating causation.
Trends in summary judgment
Following the Minnesota Supreme Court’s decision in Friedlander, there was some concern among employment law practitioners in Minnesota that the new legal standard would make it significantly easier for plaintiffs to bring whistleblower claims and prevail at summary judgment. The more plaintiff-friendly standards also seemed likely to lead to an increase in MWA claims filed in Minnesota courts.
Since Friedlander was decided approximately two years ago, Minnesota federal and state courts have issued a total of 27 court opinions and orders involving MWA claims. From the enactment of the 2013 Amendments on May 23, 2013 to the Friedlander decision in 2017, 69 opinions and orders were emitted.
Comparing the time periods and number of decisions shows there was no significant increase. Additionally, out of the 27 court opinions and orders surveyed, the court denied or reversed summary judgment in only four cases, a 14.8 percent success rate for plaintiffs at the summary judgment stage.30 It appears that following Friedlander there has been no noticeable increase in MWA claims and no increased likelihood of success at summary judgment.
Final reflections
Whistleblower protections are premised on the idea that whistleblowing should be legally protected because of the benefits it provides to society by preventing unlawful conduct. The MWA is unique compared to other state’s whistleblower statutes because of the broad causation standard in the statutory language, but a review of the case law does not indicate that the revised statutory language and Friedlander effectively amplified whistleblower protections. Friedlander’s clarification of the proper judicial standard does not appear to have changed the ultimate outcome in the majority of cases.
This result leads to the question of how the statutory scheme may be changed to provide greater protections or additional clarity for courts. To begin, the Legislature can consider clarifying the causation standard. For example, the statutory language could implement strong protections against retaliatory animus on the part of employers by replacing “because” with language that clarifies that any connection between protected conduct and an adverse employment action can be grounds for liability. Alternatively, if the current interpretation of the MWA under Friedlander is too expansive, the Legislature may also incorporate the language of the former judicial doctrines that evaluated whether the employee is acting with the purpose of exposing an illegality.
Fortunately, there is also no indication that Minnesota courts are replicating the situation that occurred after the 2013 amendments, when they continued to apply the previously established judicial standards despite substantive changes to the law. While the changes to the law appear to lower the barriers to an actionable MWA claim, recent court opinions and orders interpreting the MWA indicate that even under the new standards, employees do not appear have higher chances of success at summary judgment.
KASIA KOKOSZKA is a third-year law student at the University of Minnesota Law School and has a strong interest in employment law and employee benefits.
Notes
1 See Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000), abrogated by, Friedlander v. Edwards Lifesciences, LLC, 900 N.W.2d 162 (Minn. 2017).
2 See Kidwell v. Sybaritic, Inc., 784 N.W.2d 220, 227 (Minn. 2010).
3 See Becker v. Jostens, Inc., 210 F. Supp. 3d 1110, 1127 (D. Minn. 2016); Childs v. Fairview Health Services, A16-0849, 2016 WL 6923709, at *2 (Minn. Ct. App. 11/28/2016); Ewald v. Royal Norwegian Embassy, 2 F. Supp. 3d 1101, 1123 (D. Minn. 2014).
4 Friedlander, 900 N.W.2d at 166.
5 Id.
6 Out of 27 orders and opinions involving an MWA claim since Friedlander, only four reversed a prior grant of summary judgment or denied summary judgment. See Wingate v. Metro. Airports Comm’n, A19-0226, 2019 WL 3890451, at *1 (Minn. Ct. App. 8/19/2019); Moore v. City of New Brighton, 932 N.W.2d 317, 330 (Minn. Ct. App. 2019), review denied (Oct. 15, 2019); Benner v. St. Paul Pub. Sch., I.S.D. #625, 380 F. Supp. 3d 869, 904-05 (D. Minn. 2019); Scarborough v. Federated Mut. Ins. Co., 894 F.3d 1277, 1278 (8th Cir. 2018).
7 Minn. Stat. §181.931 subd. 6.
8 Olinger v. Renville Cty. Hosp. & Clinics, 18-CV-00472 (ECT/TNL), 2019 WL 5901379, at *7 (D. Minn. 11/12/2019) (inquiring about a hiring process and whether the employer would hire the most qualified candidate did not constitute protected conduct).
9 Eilen v. Minneapolis Pub. Sch., 17-CV-04388 (ECT/DTS), 2019 WL 1557535, at *8 (D. Minn. 4/10/2019) (“That meeting, by [plaintiff’s] own account, related to concerns with […] management and treatment of staff. [Plaintiff] points to no evidence that the discussions at that meeting even remotely touched on actual, suspected, or planned violations of the law.”)
10 See Minn. Stat. §181.932, subd. 1(1).
11 Ugrich v. Itasca Cty, Minnesota, CV 16-1008 (DWF/LIB), 2017 WL 4480092, at *5 (D. Minn. 10/6/2017) (holding letter to local newspaper did not constitute protected conduct).
12 See Minn. Stat. §181.932, subd. 1(1).
13 Kratzer v. Welsh Companies, LLC, 771 N.W.2d 14, 22 (Minn. 2009).
14 Id. at 19.
15 Id.
16 Steffens v. State, A19-0604, 2019 WL 5884570, at *2 (Minn. Ct. App. 11/12/2019); Olinger v. Renville Cty. Hosp. & Clinics, 18-CV-00472 (ECT/TNL), 2019 WL 5901379, at *7 (D. Minn. 11/12/2019).
17 Olinger, 2019 WL 5901379, at *7; Anderson v. Hearing Lab Tech., LLC, 17-CV-5527 (PJS/FLN), 2018 WL 2670615, at *1 (D. Minn. 4/3/2018).
18 Steffens, 2019 WL 5884570, at *3.
19 Moore v. City of New Brighton, 932 N.W.2d 317, 324 (Minn. Ct. App. 2019), review denied (10/15/2019).
20 Harnan v. Univ. of St. Thomas, 776 F. Supp. 2d 938, 948 (D. Minn. 2011).
21 Becker, 210 F. Supp. 3d at 1128.
22 See Minn. Stat. §181.932, subd. 1.
23 Nancy M. Modesitt, Why Whistleblowers Lose: An Empirical and Qualitative Analysis of State Court Cases, 62 U. Kan. L. Rev. 165, 170 (2013); Nancy M. Modesitt, Causation in Whistleblowing Claims, 50 U. Rich. L. Rev. 1193, 1195-96 (2016).
24 Lissick v. Andersen Corp., CV 18-2857 (DWF/KMM), 2019 WL 6324871 (D. Minn. 11/26/2019); A Xiong v. Minneapolis Pub. Sch., A18-2027, 2019 WL 4409715 (Minn. Ct. App. 9/16/2019), review denied (11/27/2019); Scarborough v. Federated Mut. Ins. Co., 379 F. Supp. 3d 772 (D. Minn. 2019); Stewart v. Qwest Corp., CV 17-5354 (DSD/DTS), 2018 WL 6704752 (D. Minn. 12/20/2018); Sellner v. MAT Indus., LLC, CV 13-1289 ADM/LIB, 2018 WL 4829184 (D. Minn. 10/4/2018); Naguib v. Trimark Hotel Corp., 903 F.3d 806 (8th Cir. 2018); Osland v. City of Minneapolis, A18-0301, 2018 WL 4201218 (Minn. Ct. App. 9/4/2018); Schrammen v. ConAgra Foods Inc., 368 F. Supp. 3d 1323 (D. Minn. 2018), aff’d, 762 Fed. Appx. 361 (8th Cir. 2019); Warmbold v. MINACT, Inc., CV 16-554 (DWF/KMM), 2017 WL 4838752 (D. Minn. 10/24/2017); Ugrich v. Itasca Cty, Minnesota, CV 16-1008 (DWF/LIB), 2017 WL 4480092 (D. Minn. 10/6/2017).
25 Id.
26 Schrammen v. ConAgra Foods Inc., 368 F. Supp. 3d 1323, 1328 (D. Minn. 2018), aff’d, 762 Fed. Appx. 361 (8th Cir. 2019); Naguib v. Trimark Hotel Corp., 903 F.3d 806, 811-12 (8th Cir. 2018).
27 Olinger, 2019 WL 5901379, at *6.
28 Schrammen, 368 F. Supp. 3d at 1328.
29 Id.
30 Wingate v. Metro. Airports Comm’n, A19-0226, 2019 WL 3890451 (Minn. Ct. App. 8/19/2019); Moore v. City of New Brighton, 932 N.W.2d 317 (Minn. Ct. App. 2019), review denied (10/15/2019); Benner v. St. Paul Pub. Sch., I.S.D. #625, 380 F. Supp. 3d 869 (D. Minn. 2019); Scarborough v. Federated Mut. Ins. Co., 894 F.3d 1277 (8th Cir. 2018).