On January 20, 2016, the Minnesota Supreme Court ruled that the statute of limitations for bringing a whistleblower claim for a discharge based on a good faith “reporting” of suspected violations of law under the Minnesota Whistleblower Act (Minn. Stat. § 181.932, subdivision 1(1) is six (6) years. Ford v. Minneapolis Public Schools, (Minn. 2016)
What is a whistleblower claim? Essentially it is a claim of retaliation and involves 3 elements. First, in good faith an employee alerts or complains to the employer, or an agency charged with regulating employer conduct, about suspected violations of the law or regulations. Second, the employer takes some adverse action against the employee. (i.e. demotion, wage cut, discipline, discharge, etc.) Third, there is a causal connection between the reporting and the adverse action taken against the employee.
What does the Ford case cover? The Court distinguished between its previous ruling in Phipps v. Clark Oil & Ref. Corp, 408 N.W.2d 569 (Minn. 1987) (wrongful discharge for refusal to perform work that would violate the law upheld as a common law tort exception to employment at will). In contrast, the Ford Court held that a wrongful discharge for “reporting” a suspected violation of law did not involve a common law tort, but one only created by subdivision 1(1) of the Act.
What does this mean for Employers? First, employers should have in place a policy and a specific procedure for handling any reporting of a suspected violation of law. In general, this policy and the attendant procedures should cover: what should be reported; when it should be reported; to whom it should be reported; what, when, and by whom should a response be given to the employee; how to deal with a problem employee who is or has reported a suspected violation of law, and most importantly that no retaliation will be taken against an employee making a good faith report/complaint.
Second, employers should immediately review all reports or complaints of suspected violations of law made by employees in the last 6 years. Then, review the reporting employee’s status to determine if any adverse action has been taken against the employee. If such action has been taken, contact legal counsel immediately for a full review and advice.
What does this mean for employees? First, if an employee was the subject of an adverse action by an employer for “reporting” a suspected violation of law within the last six (6) years, there still may be time to take legal action. Thus, they should contact an attorney right away, especially if the six years may expire soon.
Second, an employee reporting a suspected violation should document any such reporting. The what, when, when, and to whom should be set in writing immediately. The documentation could be in an email report (print it out and keep a copy off the employer’s premises); a memo or formal letter (also keep a copy off the employer’s premises); a simply a journal.
Third, if the employer takes and adverse action, it is important to document the when, what was said, and by whom it was said immediately.
Finally, both employers and employees should seek legal advice on matters that may potentially involve a future whistleblower claim as early as possible. For employees, this may be even before a report has been made. For employers, this should be before taking any adverse actions. Advice and counsel is less expensive than a lawsuit.