Unless you’ve spent the last week off the grid or binge watching 20 seasons of Law & Order, you have heard a great deal about whistleblowers and the status and credibility of a second-hand complaint.
It is not the intention here to dissect these recent events or comment upon them. Rather, we seek only to suggest to Minnesota employers that notwithstanding the current political debate, our state law appears to grant protected whistleblower status to any person who makes a whistleblower complaint regardless of whether or not that person experienced the complained-of events on a first-hand basis.
On the One Hand
The Minnesota Whistleblower Act provides that employers may not take any adverse action against employees for a variety of different actions, most notably where:
the employee, or a person acting on behalf of an 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 or to any governmental body or law enforcement official.
There are similar protections for health care employees reporting violations of standards of care, as well as for certain public employees reporting misdeeds to a legislator, the legislative auditor or a constitutional officer.
The first point to note is the obvious one – there is nothing in the provision referenced above that explicitly requires the individual to have first-hand knowledge (e.g. that they personally learned, witnessed or experienced the behavior) of the subject matter of the report.
And On the Other
In addition, the statute affords protection to “the employee, or a person acting on behalf an employee…” It is possible that this provision was intended only to protect “Joe” when Joe’s family member, attorney or other advocate makes a report on Joe’s behalf. In that event, however, wouldn’t the statute have said “the employee, or a person acting on behalf of the employee…”? Instead, the statute protects “a person acting on behalf of an employee” which easily can be read to protect “Jane” who hears Joe tell her about an impropriety and then reports Joe’s concerns to management on his behalf because Joe is reluctant to do so.
Of course, that interpretation might lead to the odd result that Jane is protected but Joe is not since Joe did not actually make the report. A court would have to conclude (and perhaps reasonably so) that under these circumstances Joe should be viewed as having implicitly made the report as well since he asked or permitted Jane to do so (but what if he asked Jane not to say anything but she made the report anyway?).
The stronger argument that “second-hand whistleblowers” are protected is the statutory requirement for good faith reports. As we wrote in It Just Got MUCH Easier to Sue as a Whistleblower in Minnesota, the Minnesota Supreme Court has interpreted the 2013 amendments to Minnesota’s Whistleblower Act to lower the bar on the good-faith requirement to simply mandating that the report not be knowingly false or made in reckless disregard for the truth.
In essence then, employees are protected if they just show that they are not making the whole thing up. It would therefore seem that if Jane talks with co-workers, hears about things they claim to be witnessing, and draws conclusions of possible wrongdoing, she would meet the good faith requirement since she would not be fabricating the stories herself. Indeed, she might actually be protected in this regard even if the other employees were fabricating their stories if Jane truly believed what they told her.
With no explicit statutory directive that whistleblower reports must be based on first-hand experiences, and with an exceptionally minimal threshold for proving good faith, a good argument exists for concluding that second-hand reports are sufficient to earn protected whistleblower status under our state statute. Until the courts or the legislature offer greater clarity, Minnesota employers should act accordingly.