The Minnesota Whistleblower Act & August 2017 Updates in Labor and Employment Law

By Krysta M. Mitchell - Seaton Peters & Revnew

August 11, 2017

The Minnesota Whistleblower Act

This week, the Minnesota Supreme Court issued a landmark unanimous opinion in Friedlander v. Edwards Lifesciences, LLC finding that an employee’s purpose for exposing an alleged illegality is no longer relevant to be afforded protection under the Minnesota Whistleblower Act (the Act).  

In 1987, the Minnesota legislature passed the Minnesota Whistleblower Act generally prohibiting an employer from discharging, threatening, discriminating or penalizing an employee in the form of compensation, terms, conditions, location or privileges of employment because the employee, or a person acting on behalf of an employee, in “good faith” reports an employer’s alleged illegal activities or actions of wrongdoing.  See Minn. Stat. § 181.932.

Since enactment, the courts have provided guidance to the meaning of good faith under the statute. Generally, to have “good faith” an employee must act with the purpose of exposing an illegality.  In 2013, the Minnesota legislature passed several amendments to the Act.  The amendments, advocated by the plaintiff’s bar, expanded whistleblower protection to include reports of violations of common law, such as breach of contract claims.  Additionally, the amendments defined “good faith” to exclude “statements or disclosures” that are knowingly false or in reckless disregard to the truth.  Under the amendments, to quality as acting in good faith, an employee must only believe his or her statement to be true.  However, since the 2013 amendments the courts have continued to apply old case law.  In Friedlander, the Minnesota Supreme Court clarified that the 2013 amendments supersede the judicially imposed requirement than an employee must act with purpose of exposing an illegality.

This decision is especially troublesome for employers, as it now appears that not only are whistleblower claims subject to a six year statute of limitations, an employee may also be afforded whistleblower protections if the purpose for making a complaint is to seek revenge against an employer for prior discipline or reprimand.

Practical Tips:

In an era where employers are modernizing their workplace by intensifying communication touchpoints via employee stay interviews, engaging in more frequent employee satisfaction surveys and welcoming mobility in hopes of retaining millennial workers, this decision exemplifies the importance of thoroughly investigating, documenting, and retaining all documents and steps taken when addressing an employee’s complaint.  Furthermore, it is best if employers document performance-based reasons why employees were denied job transfers, promotions or incentive-based bonuses.  It is all too easy for an employee’s complaint to re-arise in the form of a whistleblower claim.   

August 2017 Updates in Labor and Employment Law

Updates to the National Labor Relations Board

On August 10, 2017, Marvin Kaplan was sworn in as National Labor Relations Board Member for a term ending August 27, 2020.  The nomination comes days after Philip Miscimarra, Chairman of the Board announced that he will not accept reappointment to the position.  William Emanuel is also expected to be confirmed, giving the board a 3-2 Republican majority until December when Miscimarra’s term ends.  

NEW Form 1-9

The U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9, Employment Eligibility Verification, on July 17, 2017.  Employers may start to use the revised form immediately, but the revised I-9 must be used exclusively starting September 18, 2017.  The USCIS has also issued a revised Handbook for Employers: Guidance for Completing Form I-9 (M-247).  Issuance of the new form is a great reason for employers to review recordkeeping, document completion, process for re-verification of work authorizations, and any corrections that can be made to avoid substantial and technical violations.  Immigration compliance and reform is, and will continue to be a priority under the Trump Administration.

EEO-1 and VETS 4212 Reporting Updates

As we have previously reported, the EEO-1 filing process is changing.  The EEO-1 reports that would have been required by September 30, 2017 now do not have to be filed until March 31, 2018.  New EEO-1 reports will require compensation data (for all employers with 100 or more employees) from a workforce “snapshot” taken between October 1 and December 31, 2017.
 
Employers with federal contracts worth more than $150,000 must file annual VETS-4212 reports.  When the “old” EEO-1 reporting deadline was in effect, both reports could be filed at the same time based on the same employee data.  In a recent letter from the Deputy Assistant Secretary of Labor, the DOL said that contractors could use the same data collection period that applies to the new EEO-1 requirements, however the reporting period of August 1- September 30 will remain unchanged.

It is still possible that the EEOC will act before March 31, 2018, to modify or eliminate the reporting requirement of compensation data.