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Minnesota Legislature

Office of the Revisor of Statutes

SF 1861

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

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A bill for an act
relating to employment; protecting certain employee statements from employer
retaliation; establishing complaint procedures; establishing investigative
jurisdiction for the commissioner of labor and industry; creating civil penalties;
amending Minnesota Statutes 2006, sections 177.27, subdivisions 4, 5, by adding
a subdivision; 181.932, subdivision 1; 181.935; proposing coding for new law in
Minnesota Statutes, chapters 177; 181.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2006, section 177.27, subdivision 4, is amended to read:


Subd. 4.

Compliance orders.

The commissioner may issue an order requiring an
employer to comply with sections 177.21 to 177.35, 181.02, 181.03, 181.031, 181.032,
181.101, 181.11, 181.12, 181.13, 181.14, 181.145, 181.15, deleted text beginanddeleted text end 181.79, new text begin181.932, and
181.9325,
new text endor with any rule promulgated under section 177.28. The department shall serve
the order upon the employer or the employer's authorized representative in person or by
certified mail at the employer's place of business. An employer who wishes to contest the
order must file written notice of objection to the order with the commissioner within 15
calendar days after being served with the order. A contested case proceeding must then be
held in accordance with sections 14.57 to 14.69. If, within 15 calendar days after being
served with the order, the employer fails to file a written notice of objection with the
commissioner, the order becomes a final order of the commissioner.

Sec. 2.

Minnesota Statutes 2006, section 177.27, subdivision 5, is amended to read:


Subd. 5.

Civil actions.

new text begin(a) new text endThe commissioner may bring an action in the district
court where an employer resides or where the commissioner maintains an office to enforce
or require compliance with orders issued under subdivision 4.

new text begin (b) If the district court determines that a violation of section 181.932 or 181.9325
occurred, the court may order any appropriate relief, including but not limited to
reinstatement, back pay, restoration of lost service credit, if appropriate, compensatory
damages, and the expungement of any adverse records of state employee or applicant
for state employment who was the subject of the alleged acts of misconduct, and any
appropriate relief as described in section 181.936.
new text end

Sec. 3.

Minnesota Statutes 2006, section 177.27, is amended by adding a subdivision
to read:


new text begin Subd. 11. new text end

new text begin Investigation of certain complaints. new text end

new text begin (a) The commissioner shall
conduct an investigation of any matter that alleges improper activity through a violation
of sections 181.932 and 181.9325. The identity of the person providing the information
that initiated the investigation shall be classified as private data, pursuant to section 13.02,
subdivision 12, except that the identity may be disclosed to a law enforcement agency
that is conducting a criminal investigation of the matter.
new text end

new text begin (b) For each investigation completed, if the commissioner determines that there
is reasonable cause to believe that an employer has engaged in any improper activity,
the commissioner shall report the nature and details of the activity to the head of
the employing agency or the appropriate appointing authority. If appropriate, the
commissioner shall report this information to the attorney general, the policy committees
of the house of representatives and senate having jurisdiction over the subject involved,
and to any other authority that the commissioner deems appropriate. In any case in
which the commissioner submits a report of alleged improper activity to the head of the
employing agency or appropriate appointing authority, that individual shall report to the
commissioner with respect to any action taken by the individual regarding the activity, the
first report being transmitted no later than 30 days after the date of the auditor's report,
and monthly thereafter until final action has been taken.
new text end

new text begin (c) This subdivision shall not limit any authority conferred upon the attorney general
or other department or agency of government to investigate and prosecute any matter.
new text end

new text begin (d) The commissioner shall have all the powers and authority described in this
section to conduct investigations pursuant to this subdivision.
new text end

Sec. 4.

new text begin [177.275] INVESTIGATION PROCEDURE.
new text end

new text begin (a) The commissioner shall initiate an investigation of a written complaint of reprisal
or retaliation as prohibited by section 181.932 or 181.9325 within ten working days of
its submission. The commissioner shall complete findings of the investigation within 60
working days thereafter, and shall provide a copy of the findings to the complaining
employee or applicant for employment and to the appropriate supervisor, manager,
employee, or appointing authority. When the allegations contained in a complaint of
reprisal or retaliation are the same as, or similar to, those contained in another appeal, the
commissioner may consolidate the appeals into the most appropriate format. In these
cases, the time limits described in this subdivision shall not apply.
new text end

new text begin (b) If the commissioner finds that the supervisor, manager, employee, or appointing
power retaliated against the complainant for engaging in protected whistle-blower
activities, the commissioner may issue a compliance order under section 177.27,
subdivision 4.
new text end

new text begin (c) In order for the governor and the legislature to determine the need to continue
or modify state personnel procedures as they relate to the investigations of reprisals or
retaliation for the disclosure of information by public employees, the commissioner, by
June 30 of each year, shall submit a report to the governor and the legislature regarding
complaints filed, hearings held, and legal actions taken under this section.
new text end

Sec. 5.

Minnesota Statutes 2006, section 181.932, subdivision 1, is amended to read:


Subdivision 1.

Prohibited action.

An employer shall not discharge, discipline,
threaten, otherwise discriminate against, or penalize an employee regarding the employee's
compensation, terms, conditions, location, or privileges of employment because:

(a) the employee, or a person acting on behalf of an employee, in good faith, reports
a violation or suspected violation of any federal or state law or rule adopted pursuant to
law to an employer or to any governmental body or law enforcement official;

(b) the employee is requested by a public body or office to participate in an
investigation, hearing, inquiry;

(c) the employee refuses an employer's order to perform an action that the employee
has an objective basis in fact to believe violates any state or federal law or rule or
regulation adopted pursuant to law, and the employee informs the employer that the order
is being refused for that reason; deleted text beginor
deleted text end

(d) the employee, in good faith, reports a situation in which the quality of health care
services provided by a health care facility, organization, or health care provider violates a
standard established by federal or state law or a professionally recognized national clinical
or ethical standard and potentially places the public at risk of harmdeleted text begin.deleted text endnew text begin;
new text end

new text begin (e) the employee, in good faith, reports a situation that the employee has an objective
basis in fact to believe is a danger to public health, public safety, or the environment to the
employer or to any governmental body or law enforcement official;
new text end

new text begin (f) the employee refuses to alter, dilute, or suppress the objective representation or
communication of scientific or technical data or findings, including but not limited to,
findings of economic or environmental impact; or
new text end

new text begin (g) the employee communicates the findings of a scientific or technical study that the
employee, in good faith, believes to be truthful and accurate.
new text end

Sec. 6.

new text begin [181.9325] USE OF AUTHORITY TO INFLUENCE OR INTERFERE
WITH DISCLOSURE OF INFORMATION.
new text end

new text begin (a) An employer may not directly or indirectly use or attempt to use the employer's
official authority or influence for the purpose of intimidating, threatening, coercing, or
attempting to intimidate, threaten, or coerce any person for the purpose of interfering with
the rights described in section 181.932, or for the purpose of persuading the person to
waive or disclaim any other legal rights related to the person's employment.
new text end

new text begin (b) For purposes of this section, "use of official authority or influence" includes:
promising to confer, or conferring, any benefit; effecting, or threatening to effect, any
reprisal; or taking, or directing others to take, or recommending, processing, or approving,
any personnel action, including but not limited to appointment, promotion, transfer,
assignment, performance evaluation, suspension, or other disciplinary action.
new text end

Sec. 7.

Minnesota Statutes 2006, section 181.935, is amended to read:


181.935 INDIVIDUAL REMEDIES; PENALTY.

(a) In addition to any remedies otherwise provided by law, an employee injured
by a violation of section 181.932 new text beginor 181.9325 new text endmay bring a civil action to recover any
and all damages recoverable at law, together with costs and disbursements, including
reasonable attorney's fees, and may receive such injunctive and other equitable relief as
determined by the court.

(b) An employer who failed to notify, as required under section 181.933 or 181.934,
an employee injured by a violation of section 181.932 is subject to a civil penalty of $25
per day per injured employee not to exceed $750 per injured employee.

Sec. 8.

new text begin [181.936] REPRISALS FOR DISCLOSURE OF IMPROPER
GOVERNMENTAL ACTIVITIES; COMPLAINT PROCEDURE; PENALTIES.
new text end

new text begin (a) A state employee or applicant for state employment who files a written complaint
with the employee's or applicant's supervisor, manager, or the appointing power alleging
actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts
prohibited by section 181.9325, may also file a copy of the written complaint with the
commissioner of labor and industry, together with a sworn statement that the contents of
the written complaint are true, or are believed by the affiant to be true, under penalty of
perjury. The complaint filed with the commissioner shall be filed within 12 months of the
most recent act of reprisal complained about.
new text end

new text begin (b) Any person who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a state employee or applicant for state employment for
having made a protected disclosure under section 181.932, is subject to a fine not to
exceed $10,000 and imprisonment in the county jail for a period not to exceed one year.
new text end

new text begin (c) In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state
employee or applicant for state employment for having made a protected disclosure shall
be liable in an action for damages brought against the person by the injured party. Punitive
damages may be awarded by the court where the acts of the offending party are proven to
be malicious. Where liability has been established, the injured party shall also be entitled
to reasonable attorney fees as provided by law. However, any action for damages shall not
be available to the injured party unless the injured party has first filed a complaint with the
commissioner of labor and industry under paragraph (a), and the department has issued, or
failed to issue, findings under section 177.275.
new text end

new text begin (d) This section is not intended to prevent an appointing power, manager, or
supervisor from taking, directing others to take, recommending, or approving any
personnel action or from taking or failing to take a personnel action with respect to any
state employee or applicant for state employment if the appointing power, manager, or
supervisor reasonably believes any action or inaction is justified on the basis of evidence
separate and apart from the fact that the person has made a protected disclosure under
section 181.932.
new text end

new text begin (e) In any civil action or administrative proceeding, once it has been demonstrated
by a preponderance of evidence that an activity protected by this section and sections
1 to 7 was a contributing factor in the alleged retaliation against a former, current, or
prospective employee, the burden of proof shall be on the supervisor, manager, or
appointing power to demonstrate by clear and convincing evidence that the alleged action
would have occurred for legitimate, independent reasons even if the employee had not
engaged in protected disclosures or refused an illegal order. If the supervisor, manager,
or appointing power fails to meet this burden of proof in an adverse action against the
employee in any administrative review, challenge, or adjudication in which retaliation
has been demonstrated to be a contributing factor, the employee shall have a complete
affirmative defense in the adverse action.
new text end

new text begin (f) Nothing in this section and sections 1 to 7 shall be deemed to diminish the rights,
privileges, or remedies of any employee under any other federal or state law or under any
employment contract or collective bargaining agreement.
new text end