Whistleblower Retaliation

The Minnesota Whistleblower Act prohibits an employer from retaliating against an employee who reports unlawful conduct (i.e., “illegal”) in the workplace. In other words, it is a violation of the law for an employer to “retaliate” against a “whistleblower.” You might be asking yourself: What is a “whistleblower?” What does it mean for an employer to “retaliate?” What should I do if I observe or learn of illegal activity in the workplace? These are all great questions, so let’s start by defining what it means to be a whistleblower.

what is a “whistleblower?”

The definition of a “whistleblower” is quite broad. In short, it’s somebody who reports wrongdoing by their employer. This can be true whether the wrongdoing is by the company as a whole, a division of the company, or an individual employee. This is also referred to as “protected conduct.” While there are many types of whistleblower laws that extend beyond the Minnesota Whistleblower Act, for now we’ll just focus this particular law. There is no “one size fits all” definition, and if you’re unsure, please give us a call for a free consultation. For now, we’ll address a few specific types of "whistleblowers” under the law and give some hypothetical examples.

• A whistleblower is someone who reports an actual or suspected violation of the law to their employer, a governmental agency, or law enforcement official.

  Example 1: Sally works in the accounting department for a company that employs salespeople. Those salespeople earn commissions based on the gross profits of the sales they make. One day, Sally observes a manager of the company manipulating sales data in order to pay the company’s salespeople less money. Sally contacts the Company’s Human Resource Department and tells them what she observed. In doing so, Sally has become a whistleblower.

  Example 2: George works for a construction company. One day, he sees one of the machine operators using an excavator to bury trash from the job-site underground while the city’s inspector is away. When the inspector returns, George tells the inspector what he observed. George is a whistleblower.

• A whistleblower is someone who is requested to participate in a hearing or investigation.

  Example: Neil witnessed a physical altercation between two employees at work in which the police were called. The owner of the company did not want the employees talking to the police because it could create legal problems for the company. At the request of one of the police officers, Neil gave a statement about what he observed. Neil is a whistleblower.

• A whistleblower is someone who refuses his/her employer’s order to do something that the individual believes is unlawful and explains that belief to his/her employer.

  Example: Tyson works in the lab for a pharmaceutical company. One day, Tyson is told to destroy records that show certain chemicals were not properly disposed of. Tyson believes that environmental regulations require the company to keep these records and refuses the order. Tyson is a whistleblower.

• A whistleblower is someone who reports a situation in which a health care services company violates a professionally recognized standard of care that places the public at risk of harm.

  Example: Dianne is a nurse in the Emergency Department. While preparing for surgery, Dianne observes that the surgeon forgot to wash her hands prior to operating. Dianne informs the surgeon of the same. Dianne is a whistleblower.

what is considered “retaliation” under the minnesota whistleblower act?

Once an employee reports wrongdoing (i.e., engages in “protected conduct”), that employee is protected from retaliation by his/her employer. Another way to think of retaliation is punishment. In the law, this punishment is called an “adverse employment action.” The most obvious example of an “adverse employment action” is terminating an employee. But there are many other types of adverse employment actions, as well. These include, but are not limited to, demotions or suspensions, reductions in pay, refusing to promote, placing an employee on a Performance Improvement Plan (“PIP”), threatening an employee with termination, or materially changing the working conditions of an employee for the worse (for example: telling an employee that he/she can no longer work remotely because he/she reported such wrongdoing).

We sometimes get the question “if I report wrongdoing by my employer, does that mean my employer cannot fire me?” Not exactly. Reporting wrongdoing in the workplace protects you from unlawful retaliation. It does not protect an employee who is otherwise not meeting his/her expectations in the workplace. An employee whose work performance is deficient, failing to show up at work, or otherwise not meeting an employer’s reasonable expectations cannot try to use the Minnesota Whistleblower Act as a shield.

With that said, employers sometimes use performance as an excuse to retaliate against an employee who has reported wrongdoing. In other words, employers will sometimes falsely accuse an employee of inadequate work performance in order to justify some type of retaliatory action. When an employer does this it is called “pretext.” Here is an example of pretext, using Sally from the hypothetical scenario above:

• Sally reported to Human Resources that a manager was manipulating sales data in order to underpay the company’s salespeople. A week later, Sally’s manager tells Sally that she is not meeting the Company’s expectations and is being placed on a Performance Improvement Plan (“PIP”) and will be terminated unless she improves. Sally, a longterm employee of the Company with years of outstanding performance reviews, reviews the PIP which contains vague allegations like “not working hard enough” and “not being a team player” without any specific examples of what she is doing wrong. On its face, the allegations in Sally’s PIP appear to be pretextual and simply an excuse to retaliate against her.

If you would like to know whether your employer has committed an “adverse employment action” against you, please give us a call and we’re happy to discuss your situation at no charge.

What steps i should take if i observe wrongdoing in the workplace?

If you are concerned that your employer—or someone working for your employer—is engaging in wrongdoing, or if you’ve reported the same and are worried about retaliation, you should contact an attorney to discuss your situation. Once we know more, we can usually recommend additional steps which may, but not always, include things like documenting the report, writing to Human Resources, keeping notes, or other steps. At the same time, it’s important to avoid doing things that could jeopardize your employment or put you at risk of legal action from your employer. Some companies have policies that limit an employee’s ability to keep documents or records without the employer’s authorization. If you have questions, we’re here to answer them.