Karen Kidd Feb. 12, 2016, 9:17am


ST. PAUL, Minn. (Legal Newsline) – Despite affirming an extended statute of limitations, a recent Minnesota Supreme Court decision leaves unanswered questions in certain cases filed under the state's Whistleblower Act, an attorney familiar with the legislation says.

In its most recent decision involving the Minnesota Whistleblower Act, the high court affirmed a 2014 Minnesota Court of Appeals’ decision in Ford v. Minneapolis Public Schools that extended the statute of limitations in such cases from two years to six. In the opinion by Justice David Lee Lillehaug, the court ruled last month that an action stemming from an employee losing his or her job for reporting an employer's law violations, also known as "whistleblowing," is a statutory action. 

Statutory actions have a statute of limitations of six years while those of common law are covered by a statute of limitations of only two years.

"They decided narrowly in this case but whether they answered the questions that are still out there is open," said Joe Weiner, an attorney with Littler Mendelson P.C. in Minneapolis.

Weiner, together with fellow Littler attorneys Emily McNee and Kerry L. Middleton, has for years followed the evolution of the Minnesota Whistleblower Act, particularly as it was revised in 2012 and 2015.

The case dates back to 2007 when Yvette Ford, then the Minneapolis Schools public relations director, reported allegedly illegal and unethical practices within MPS's English Language Learners department. When her job was eliminated the following year, Ford sued MPS, claiming she'd lost her job in retaliation for her whistleblowing.

Ford's last day of employed by the MPS was June 30, 2008. She filed her lawsuit on June 29, 2010.

A district court ruled that protections under Minnesota's whistleblower statute begin the day an employee learns they’re going to lose his or her job, which for Ford was in April of 2008, and not the day the job actually ends. For this reason, MPS's attorneys claimed the statute of limitations, two years in common law, ran out before Ford filed.

However, the Supreme Court disagreed, citing Phipps v. Clark Oil & Ref. Corp. of 1987, a case that recognized a statutory counterpart in a subdivision of the Minnesota Whistleblower Act. That statutory counterpart in the act prohibits employer discrimination based on an employee’s refusal to “perform an action that the employee has an objective basis in fact to believe violates” the law.

This and other cases, the high court's opinion said, means statute of limitations provisions for reporting cases, such as the Ford case, fall under statutory law (six years) and not common law (two years).

Weiner said that litigants in reporting cases who have passed two years without filing could now file under the extended statute of limitations but opined this would cover a minority of whistleblowers.

"Usually what we see in retaliatory claims is that people bring these cases in a very timely manner," he said. "In our own experience, they file within the first year."

The decision still leaves a number of questions hovering over the Minnesota Whistleblowers Act, Weiner said. In particular, Weiner and his colleagues point out Ford’s claim fell under the reporting portion of the Minnesota Whistleblower Act, which means the court's decision did not address whether a refusal claim also would be subject to the extended six-year statute of limitations.

A refusal claim involves an employee who refuses to do something illegal as ordered by an employer.

Whether refusal claims now are covered by the extended statute of limitations is made all the murkier because there is precedent in Minnesota that recognizes common law causes of action in a refusal claim, which suggests the briefer statute of limitations, he said.

"It is very unusual for there to be multiple statutes of limitations in legislation of this type," Weiner said.

For employees, Weiner said that the latest interpretation of the statute indicates just how much things have changed between employers and employees in most recent decades.

"It does seem very clear that when someone is being forced to do something illegal or lose their job, there's something wrong with that," Weiner said.

"But almost 30 years ago, work-at-will was even more entrenched than it is now."

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