Refusing an Illegal Order Is Protected Twice in Minnesota, and the Two Protections Do Not Use the Same Standard

Two protections that do not use the same standard

Minnesota protects an employee who refuses to break the law in two separate places. One is a clause of the Whistleblower Act, whose present words the Legislature wrote in April 1988. The other is a common-law claim the Minnesota Supreme Court recognized in June 1987 and was still applying in August 2026. They overlap heavily. They are not the same, and the differences are in the words.

Minn. Stat. § 181.932, subd. 1, provides that an employer shall not take the responses listed in that subdivision against an employee because:

(3) 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;

Four things have to be present. There has to be an order. It has to be an order to perform an action — not a policy the employee disagrees with, and not a state of affairs. The employee has to have an objective basis in fact to believe the action violates a state or federal law, rule, or regulation. And the employee has to tell the employer that is why the order is being refused.

On the first of those, the court of appeals has said the order need not be explicit. In Grundtner v. University of Minnesota, 730 N.W.2d 323, 331 (Minn. Ct. App. 2007), the court held that “[t]he statute does not require that an employer explicitly or blatantly order the employee to violate the law” and that “[i]ndirect or implied directions could constitute an adequate order,” reasoning that “[b]ecause illegal conduct is often shielded, implied directives conveying to an employee a request to violate the law warrant protection under subdivision 1(c).”

Grundtner is also a reminder of where that road ends. The employee there was a university director of design and construction who believed another university director had steered him toward an illegal procurement, and the court rejected his refusal claim on the same page it wrote those sentences — “appellant did not engage in statutorily protected conduct,” Grundtner, 730 N.W.2d at 331 — and affirmed summary judgment for the university, id. at 334. Its reason: “No one at the university ordered appellant to violate the law. There is no evidence of pressure or directives requiring appellant to violate the law.” Id. at 331. A standard that admits implied directives still requires evidence of one.

The clause did not always read that way, and the change was deliberate

When the Act took effect in 1987 the refusal clause was lettered (c) and read differently. The Minnesota Supreme Court quoted it that year, in Phipps v. Clark Oil & Refining Corp., 408 N.W.2d 569, 571 (Minn. 1987):

(c) the employee refuses to participate in any activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law.

The next session, the Legislature rewrote it. Laws 1988, ch. 659, § 2, made three changes and only three, and the act’s own strike-and-insert markup shows each one:

• It struck “to participate in any activity” and inserted “an employer’s order to perform an action.” The protected act narrowed from declining to be involved in something to refusing a directive.
• It struck “, in good faith, believes” and inserted “has an objective basis in fact to believe.” The mental element moved from what the employee sincerely thought to something the employee must be able to ground in fact.
• It added, at the end, “, and the employee informs the employer that the order is being refused for that reason.” A silent refusal became a different case.

The act was approved April 26, 1988. Its one effective-date provision, § 9, reads “Section 1 is effective the day following final enactment,” and § 1 is a parental-leave section; nothing in the act assigns § 2 a different date, so § 2 takes the act’s default.

Those words have been carried forward unchanged through every later amendment, including the 1997 act that added the health-care clause and the 2013, 2023, and 2025 acts that changed other parts of subdivision 1.

The supreme court has never said what “objective basis in fact” means

On August 12, 2026, the Minnesota Supreme Court decided Wredberg v. Canvas Health, Inc., No. A24-1897 (Minn. Aug. 12, 2026), a subdivision 1(3) case. It said, in terms, that the phrase is uninterpreted. Slip op. at 8:

Although we have never interpreted what it means for an employee to have “an objective basis in fact to believe” under subdivision 1(3), the parties agree that …

A footnote to that sentence adds the count: the court has cited the phrase “only twice, and we did not analyze its meaning in either instance,” listing Ford v. Minneapolis Public Schools, 874 N.W.2d 231, 233 (Minn. 2016), and Nelson v. Productive Alternatives, Inc., 715 N.W.2d 452, 455 n.2 (Minn. 2006). Wredberg, slip op. at 8–9 n.4 (the footnote begins on page 8 and runs onto page 9).

Then it declined to interpret it. Slip op. at 9:

Given the parties’ agreement and the lack of any briefing on the meaning of “an objective basis in fact to believe,” we assume for the purposes of this case only—but do not decide—that Wredberg’s whistleblower claim is contingent on her alleging that her employer ordered her to actually violate the law.

That distinction is the whole point of the sentence. Wredberg did not hold that Minnesota requires an order to commit an actual violation of law. The parties agreed on that premise, no one briefed the alternative, and the court assumed it while saying it does not decide it. The disposition — affirming dismissal — followed from the assumption. Slip op. at 26.

Wredberg also flagged, in a footnote, an argument employers make by borrowing across clauses. Both the district court and the court of appeals had relied on Abraham v. County of Hennepin, 639 N.W.2d 342, 355 (Minn. 2002), for the rule that the alleged facts, if proven, must constitute a violation of law. The supreme court noted that “that opinion considered a different provision of the Whistleblower Act,” and set the two texts side by side: subdivision 1(1) protects an employee who in “good faith, reports a violation, suspected violation, or planned violation,” while subdivision 1(3) protects an employee who “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.” Wredberg, slip op. at 9 n.5. The clauses are not interchangeable, and neither is the case law built on them.

Nobody has construed the notice element either

The last words of clause (3) are the ones an employee is most likely to fail without knowing it: the employee must inform the employer that the order is being refused for that reason. How specific the statement has to be, whether it must precede the refusal or may follow it, and whether it must identify the law are all open. A search of Minnesota Supreme Court and Court of Appeals decisions available through CourtListener for opinions containing the phrase “informs the employer that the order is being refused” returns eight records covering seven decisions, the most recent of which is Wredberg. All seven were retrieved and read. Bersch v. Rgnonti & Associates, Inc., 584 N.W.2d 783 (Minn. Ct. App. 1998), sets the clause out in full at 786 and then decides the case under a different clause entirely — the one protecting an employee asked by a public body to participate in an investigation. Bersch, 584 N.W.2d at 788. None of the other six separates the notice element out and says what it requires. Janklow v. Minnesota Board of Examiners for Nursing Home Administrators, 536 N.W.2d 20, 23 (Minn. Ct. App. 1995), comes closest, and stops short: on evidence that the employee twice told his employer in writing that he could not comply because a statute forbade it, the court held only that “[w]hether Janklow refused an order under the requisite conditions of Minn.Stat. § 181.932, subd. 1(c), raises a genuine issue of material fact.” The conditions are treated as a set. Which of them the evidence satisfied, and what the notice condition demands on its own, the opinion does not say.

The common-law claim, and what it required

Phipps is the reason a second route exists. Mark Phipps was a cashier at a Brooklyn Park service station. A customer asked for leaded gasoline for a 1976 Chevrolet; the manager told him to dispense it; he refused, because federal regulations made it illegal for a retailer or a retailer’s employee to put leaded gasoline into a vehicle designed for unleaded. He was fired. Phipps, 408 N.W.2d at 570–71.

The court of appeals had recognized a broad exception to at-will employment for discharges contravening “a clear mandate of public policy.” Between oral argument and decision, the Legislature enacted the Whistleblower Act, and the supreme court said the broad policy question was therefore no longer before it. Phipps, 408 N.W.2d at 571. Because Phipps was fired before the Act took effect, it still had to decide whether the common law gave him anything. It held, at 571:

we hold that an employee may bring an action for wrongful discharge if that employee is discharged for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law or rule or regulation adopted pursuant to law.

Two more holdings from the same opinion are worth knowing. On proof, at 572: “after the plaintiff has demonstrated that his discharge may have been motivated by his good faith refusal to violate the law, the burden of production shifts to the defendant to articulate another reason for the discharge. To prevail, however, the plaintiff must prove, by a preponderance of the evidence, that the discharge was for an impermissible reason.” And on damages, at 573: “We agree, and hold that punitive damages will not apply to this action.” The remedies available under the statute are a separate matter, treated in what a whistleblower claim can recover.

The Act did not displace it

For years, federal courts applying Minnesota law had treated Phipps as a relic — a claim available only to employees whose discharge predated the Act. In Nelson v. Productive Alternatives, Inc., 715 N.W.2d 452 (Minn. 2006), the supreme court settled it the other way. At 453:

We hold, as did the court of appeals, and as now agreed by the parties, that the Minnesota Whistleblower Act does not preclude common-law wrongful-discharge claims premised on Phipps.

The reasoning was a canon, not a policy judgment. At 455: “Because a statute should not be interpreted to modify the common law unless the statute does so explicitly, the Whistleblower Act, which does not expressly modify the common law, should not be read to preclude common-law wrongful-discharge actions.” The court added that the plain language of Phipps and of Abraham shows “the Phipps cause of action is not merely a pre-Whistleblower Act cause of action, but a cause of action with continuing viability in the common law.” Nelson, 715 N.W.2d at 455.

It also said, in a footnote on the same page, what most practitioners assume: the common-law claim “though still viable, may well be largely duplicative of the cause of action available under the Whistleblower Act.” Nelson, 715 N.W.2d at 455 n.3.

Nelson itself lost. The employee there had been fired, he said, for how he voted as a member of the nonprofit that employed him, and the court held that no clear public policy supported such a claim. 715 N.W.2d at 456–57. Dukowitz v. Hannon Security Services, 841 N.W.2d 147 (Minn. 2014), drew the same line for an employee fired for applying for unemployment benefits, holding at 150 that the court had “limited the cause of action in Phipps to discharges resulting from an employee’s good-faith refusal to violate the law,” and at 151 that neither Phipps nor Nelson “recognizes a broader cause of action that arises every time an employee’s termination results from an employer’s violation of a clear mandate of public policy.”

The two standards, side by side

The difference in the mental element is not academic, and Wredberg pointed straight at it twice without resolving it either time — and the reason it gave both times was that nobody had raised it.

On the statutory side, at slip op. 9: “Wredberg does not contend that ‘an objective basis in fact to believe’ may require something less than being ordered to actually violate a law.” On the common-law side, in a footnote at slip op. 28 n.22: “Wredberg does not argue that the phrase ‘in good faith, believes [that a law has been violated],’ from Phipps, 408 N.W.2d at 571, allows an employee to allege something less than an order to commit an actual violation of law. Accordingly, we do not consider that interpretation of Phipps here.”

Whether either standard reaches something short of an order to commit an actual violation is therefore an argument the supreme court twice recorded was not made to it, in one opinion, and twice declined to consider on that ground. A court that notes an argument was never raised has not weighed it and rejected it.

The preemption note the Revisor prints on this section

The Revisor publishes § 181.932 with three notes recording federal preemption holdings against it, and one of them names clause (3). It reads:

NOTE: Subdivision 1, paragraphs (a) and (c) (renumbered clauses (1) and (3)), were found preempted by the federal Airline Deregulation Act to the extent that they relate to air carrier routes and services in Botz v. Omni Air Int’l, 286 F.3d 488 (8th Cir. 2002).

That is the Revisor’s note, reproduced as published. This page does not cite the decision it names, has not retrieved it, and takes no position on what it holds or how far it reaches. What the note establishes is narrower and worth carrying anyway: an employee of an air carrier who refuses an order under clause (3) is in a field where a federal preemption holding has been recorded against the clause, and the general account on this page is not the whole of the analysis there.

The clock

The Whistleblower Act contains no limitations period of its own; the number comes from chapter 541, and it depends on which clause the claim arises under.

For a reporting claim under subdivision 1(1), it is six years. In Ford v. Minneapolis Public Schools, 874 N.W.2d 231 (Minn. 2016), the supreme court reasoned at 233 that “the cause of action created by section 181.932, subdivision 1(1), has no counterpart in Minnesota common law,” so the claim is “upon a liability created by statute” under Minn. Stat. § 541.05, subd. 1(2), and concluded at 234: “For these reasons, Ford’s cause of action for violation of subdivision 1(1) of the MWA is governed by the 6-year statute of limitations found in Minn.Stat. § 541.05, subd. 1(2).” (The unspaced “Minn.Stat.” is the reporter’s.) A footnote on the same page disposes of the two-year answer that had been circulating: “To the extent that Larson suggests that all claims under the MWA are subject to the 2-year statute of limitations in section 541.07(1), Larson is overruled.” Ford, 874 N.W.2d at 234 n.2.

For a refusal claim under subdivision 1(3), Ford decided nothing. The school district argued to the court that it would be anomalous for a subdivision 1(3) claim to carry two years while a subdivision 1(1) claim carried six, and the court answered only that “our decision today is grounded in the text of the applicable statutes and on controlling precedent” and left the policy argument to the Legislature. Ford, 874 N.W.2d at 234. The supreme court decided a subdivision 1(3) case on August 12, 2026 in Wredberg and did not reach the question there either. This page states no limitations period for a subdivision 1(3) claim or for the common-law claim, because no Minnesota appellate decision retrieved for it states one. The full treatment is in the whistleblower deadline, and the hub guide is at the Whistleblower Act protects the report.

What this page does not do

It sets out two causes of action and the words that separate them. It does not evaluate an order, a refusal, or a termination, and it does not tell you which claim fits a set of facts — that question is exactly the one the Minnesota Supreme Court left open in August 2026.

Currency

Statutory text is from the 2025 Minnesota Statutes as posted by the Revisor. The History line for § 181.932 ends at 2025 c 39 art 2 s 57; the Revisor’s Table 2, queried for § 181.932, records amendments to subdivision 1 in 1997, 2007, 2013, 2023, and 2025 and no 2026 action. Each of those five amending sections was read in strike-and-insert form: none of them altered the words of clause (3) as the 1988 act wrote them. Section 541.05 was checked the same way — its History line ends at 2015 c 5 art 15 s 18, and Table 2 records no action after 2015.

Related: the Whistleblower Act protects the report, what counts as a report, was my firing illegal, and the map of Minnesota whistleblower claims.