Firing Is One of Nine Things the Whistleblower Act Forbids — and the Word That Does the Most Work Is "Penalize"

Nine verbs, and the dates they arrived

The response side of the Minnesota Whistleblower Act is one sentence, and it has grown twice. Minn. Stat. § 181.932, subd. 1, as posted in the 2025 Minnesota Statutes, opens:

An employer shall not discharge, discipline, penalize, interfere with, threaten, restrain, coerce, or otherwise retaliate or discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:

The six reasons that follow the colon are the protected categories, and the hub guide walks all six. This page is about the words before the colon.

When the Act was passed in 1987 the list held five items. The Minnesota Supreme Court quoted it that year in Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 571 (Minn. 1987): “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:”.

Laws 2023, ch. 53, art. 11, § 26, rewrote the sentence into its present shape, adding four verbs — interfere with, restrain, coerce, and retaliate — and moving “penalize” forward in the list. That section carries its own effective-date clause: “This section is effective July 1, 2023.”

Two things follow from those dates, and they matter more than they look.

First, every Minnesota appellate decision construing the response side of the Act was decided under the shorter list. A search of Minnesota Supreme Court and Court of Appeals opinions in the CourtListener database for decisions filed after July 1, 2023, that cite § 181.932 and use “interfere with” or “restrain, coerce” returns none. The four added verbs have not been applied by a Minnesota appellate court that search reaches.

Second, the qualifying phrase has never changed. From 1987 to today the prohibited response has had to be one “regarding the employee’s compensation, terms, conditions, location, or privileges of employment.” Nine verbs, one qualifier, and the qualifier is where employers make their argument.

“Penalize” is the only one of the nine the Legislature defined

Minn. Stat. § 181.931, subd. 5, added by Laws 2013, ch. 83, § 2:

“Penalize” means conduct that might dissuade a reasonable employee from making or supporting a report, including post-termination conduct by an employer or conduct by an employer for the benefit of a third party.

Four features are in that sentence.

• The standard is objective. The question is what a reasonable employee might do, not what this employee actually did. An employee who reported anyway is not disqualified by having been brave.
• It asks whether the conduct might dissuade, not whether it did. That is a lower bar than proof of deterrence, and it is deliberately phrased in the conditional.
• It reaches conduct after the job ends.
• It reaches conduct by an employer for the benefit of a third party — not only conduct that benefits the employer.

The one Minnesota decision that has applied it

Moore v. City of New Brighton, 932 N.W.2d 317 (Minn. Ct. App. 2019), is a police sergeant’s case. A month after he filed a union grievance over unpaid overtime, the city opened two investigations into him. It placed him on paid administrative leave and ordered him to stay in his house from 8:00 in the morning to 4:00 in the afternoon, Monday through Friday, and not to discuss either investigation with anyone. The investigations took two months. One produced a five-day suspension; the other cleared him, and the city never told him so. The leave ran nine months. When it ended he was reassigned from supervising officers to a desk job managing cars and equipment, given the only unacceptable performance review of his career, and placed on a remedial plan.

On the definition, the court wrote at 325:

This statutory definition, which the legislature adopted in 2013, see 2013 Minn. Laws ch. 83, § 2, at 469, has not been construed in any Minnesota case. But its operative terms, “might dissuade” and “reasonable employee,” are plain and unambiguous, and they suggest an inclusive reach into a wide variety of unspecified employer behavior. Nothing on the face of the definition categorically excludes as actionable conduct an employer’s decision to investigate an employee and remove him from active service by placing him on extensive administrative leave.

The court then held, at 327, that the evidence created a jury question, and drew the boundary of its own holding in the same paragraph:

We need not decide whether leave that is truly pending an investigation can never constitute an adverse employment action. We conclude only that administrative investigatory leaves are not categorically excluded from constituting adverse employment actions under the Minnesota Whistleblower Act.

That is a narrow holding stated narrowly, and it is worth reading it as written. Moore did not hold that administrative leave is retaliation. It held that it is not automatically not retaliation, and that on these facts a jury could go either way.

Several small things, added up

The district court in Moore had examined each of the city’s later acts on its own — the reassignment, the negative evaluation, the coaching plan — and found each insufficient. The court of appeals took a different approach at 328:

So although the district court may have been correct in deeming the reassignment, performance evaluation, and coaching directive as unlikely, individually, to dissuade a reasonable employee from engaging in protected conduct, we reach a different conclusion by considering these actions as a collective with the city’s investigative and leave actions.

The condition attached to that approach is stated a page earlier: the collective reading is available where all of the employer’s allegedly retaliatory behavior “might, as a matter of fact, be construed as a series of related decisions tied to the same triggering, statutorily-protected conduct.” Moore, 932 N.W.2d at 327. The court reached the approach itself by way of an Eighth Circuit decision under the Minnesota Human Rights Act, which it quoted for the proposition that the adverse-action element may be met on the cumulative effect if the acts, considered in the aggregate, would dissuade a reasonable employee. Moore, 932 N.W.2d at 328.

Moore also disposed of an argument employers still make from federal case law — that investigating an employee and placing that employee on paid leave are categorically not adverse actions. At 326 the court examined the two Eighth Circuit decisions the city relied on and wrote: “We see no such bright-line rule in the cited cases.” In one, the employee was “promptly returned to his original position as an Investigator II” once the investigation concluded. Moore, 932 N.W.2d at 326. In the other, the employee “had been suspended with pay for only three days.” Moore, 932 N.W.2d at 327. Neither resembled nine months.

Where the definition came from, and the words Minnesota did not take

Moore observed at 326 that the Minnesota definition “closely mirrors the United States Supreme Court’s language describing materially adverse conduct that can support a retaliation claim under Title VII.” The language it had in mind is from Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). At 68:

In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Set that beside § 181.931, subd. 5, and the resemblance is real but partial. The Minnesota Legislature took the “dissuade a reasonable employee” half. It did not take the phrase “materially adverse,” and it did not take the limits the Supreme Court attached to that phrase in the two paragraphs that follow. At 68 the Court wrote: “We speak of material adversity because we believe it is important to separate significant from trivial harms,” and, in the same paragraph, “normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” At 69 it added: “Context matters.”

Whether Minnesota’s definition carries those limits is an open question. Moore found the Title VII cases “persuasive and corroborative,” 932 N.W.2d at 326, but it did not hold that § 181.931, subd. 5, incorporates a materiality threshold, and no other Minnesota appellate decision retrieved for this page addresses it. An employer will argue that a definition modeled on Burlington Northern takes Burlington Northern’s floor with it. An employee will argue that the Legislature saw the phrase “materially adverse” and left it out. Neither argument has been resolved in a Minnesota appellate decision this page could cite.

Two more things nobody has decided

Post-termination conduct. Section 181.931, subd. 5, says in terms that penalizing includes “post-termination conduct by an employer.” Section 181.932, subd. 1, frames the prohibition as one “regarding the employee’s compensation, terms, conditions, location, or privileges of employment” — words written in 1987, before the definition existed, and describing a relationship that a terminated employee no longer has. A search of the CourtListener opinion database for any decision quoting “post-termination conduct by an employer” returns none. The two provisions have not been read together in a decision that search reaches.

Conduct for a third party’s benefit. The same subdivision reaches “conduct by an employer for the benefit of a third party.” No retrieved Minnesota decision applies that clause either.

Both phrases are in the statute. Neither has a case attached to it, and this page does not supply one.

What this page does not do

This page describes what the statute forbids an employer from doing. It does not describe how a claim is proven, which is a separate set of questions — whether the decision-maker knew about the report, whether the timing supports an inference, and what happens once the employer offers a reason. Those are in how a whistleblower case is proven and causation, knowledge, and timing. And it does not evaluate any particular sequence of events, which is the work that stands between a statute and a claim.

Currency

Quotations are from the 2025 Minnesota Statutes as posted by the Revisor. The History line for § 181.931 ends at 2025 c 39 art 2 s 54-56 and for § 181.932 at 2025 c 39 art 2 s 57; the Revisor’s Table 2, queried per section, records no 2026 action on either. The 2025 amendment to § 181.932, subd. 1, changed clause (6) and left the list of prohibited responses exactly as the 2023 act wrote it.

Related: the Whistleblower Act protects the report, what counts as protected activity across eight Minnesota statutes, and the map of Minnesota whistleblower claims.