MN Supreme Court Affirms: Job Duties Play a Part in Determining if Employee Engaged in “Protected Activity” for Protection Under Whistleblower’s Statute

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The Minnesota Supreme Court issued a much-anticipated decision for employers and employment attorneys. The decision, Kidwell v. Sybaritic, Inc., affirmed a Minnesota Court of Appeals decision that held that an employee’s job duties are relevant in determining whether the employee made a good faith report of a suspected illegality under the Minnesota Whistleblower Act.

In the Kidwell case, an attorney had complained to his employer that he believed the company was illegally withholding discovery during litigation. He was terminated shortly thereafter as a result of that complaint, he alleged. The jury at the district court level agreed with the employee that he had engaged in conduct that was protected under Minnesota Whistleblower’s Act, which

prohibits an employer from discharging an employee because the employee in good faith reports a violation or suspected violation of any federal or state law to an employer or to any governmental body or law enforcement official

and that he had been terminated as a result of that conduct. The jury awarded the plaintiff $197,000.00 in damages. But before he could buy a new car or take a nice vacation, the employer appealed the decision to the Court of Appeals.

And the Court of Appeals reversed the jury’s verdict and its award of damages, holding that an employee does not engage in “protected conduct” under the statute when that employee’s reports to his employer is in fulfillment of the employee’s job duties. According to the court, an in-house attorney has a duty to report such activity, such as withholding discovery, to his employer. Thus, there was no “protected activity” and even if the employee was terminated for that report or complaint, he had no legal recourse.

The decision was a blow to plaintiffs’ attorneys, because defense attorneys can now argue that many reports would fall under the employee’s job duties and thus be excluded from protection. With the Supreme Court’s affirmation of the Court of Appeal’s decision, that argument is even more compelling.

For employers, it means that written job descriptions could be amended to include such actions as reporting to management suspected violations of laws, statutes or policies (even though reports of policy violations cannot be protected conduct) to make it easier to argue that an employee’s report was part of his or her job duties.

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