Minn. Stat. § 181.935 Is Three Paragraphs Long — Damages, Fees, Reinstatement, Expungement, and a $25-a-Day Penalty — and It Says Nothing at All About Punitive Damages

The whole remedy section, paragraph by paragraph

Minn. Stat. § 181.935 is titled “INDIVIDUAL REMEDIES; PENALTY” and runs three paragraphs. Paragraph (a):

In addition to any remedies otherwise provided by law, an employee injured by a violation of section 181.932 may 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.

Paragraph (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.

Paragraph (c):

If the district court determines that a violation of section 181.932 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 an employee who was the subject of the alleged acts of misconduct.

That is the entire section. Its History line reads 1987 c 76 s 5; 2007 c 135 art 3 s 17, and a query of the Revisor’s Table 2 for section 181.935 returns one record — an amendment in the 2007 regular session. Nothing has changed in it since.

Four things follow from the text, and one of the four is an absence.

“In addition to any remedies otherwise provided by law”

That phrase opens the section, and the Minnesota Supreme Court has treated it as operative rather than decorative.

In Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002), two county print-shop employees brought retaliatory-discharge claims under both the Whistleblower Act and the Minnesota Occupational Safety and Health Act on the same facts. The district court made them choose. The supreme court reversed, holding at 348:

We hold that claims for retaliatory discharge, seeking only money damages, brought under the remedy provisions of both the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, may be pursued concurrently in one action.

The reasoning rested on the absence of an exclusivity clause: “neither the Whistleblower Act nor MOSHA has an exclusive remedy provision; in fact, the Whistleblower Act expressly provides that its remedies are not exclusive.” Abraham, 639 N.W.2d at 348. The court added the limit in the same breath, at 347: “Of course, a plaintiff may not recover duplicative money damages.”

The jury, and the phrase the holding is built around

Neither § 181.935 nor § 181.932 mentions a jury. Abraham, 639 N.W.2d at 348: “Neither the Whistleblower Act nor MOSHA specifically provides for the right to jury trial in its remedy provision, see Minn.Stat. §§ 181.935, 182.669, subd. 1, so that right, if it exists, must arise under the constitution.”

It does. Article I, Section 4 of the Minnesota Constitution provides that the right of trial by jury “shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.” The supreme court traced Minnesota wrongful-discharge actions back to 1861, concluded that “[a]s contract actions brought in a court of law for money damages, claims for wrongful discharge were causes of action at law, and they were consequently tried to juries,” Abraham, 639 N.W.2d at 351, and that a whistleblower claim “that arises from alleged retaliatory conduct by the employer intended to injure the employee for engaging in lawful conduct or for reporting unlawful conduct, therefore, is a tort,” id. at 352–53. The holding, at 354:

We hold that an action brought in district court under the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, alleging the tort of retaliatory discharge and seeking only money damages, is a cause of action at law with a constitutional right to jury trial.

“Seeking only money damages” is part of the holding, not throat-clearing. The court said twice that the analysis turned on the relief sought — “We note again that appellants do not seek the equitable relief provided by the Whistleblower Act, Minn.Stat. § 181.935(a), and MOSHA, Minn.Stat. § 182.669, subd. 1, but seek only money damages.” Abraham, 639 N.W.2d at 353. Paragraph (a) of the statute assigns injunctive and other equitable relief to “the court,” and paragraph (c) assigns the listed orders to “the district court.” How a case that seeks both a jury verdict and reinstatement is tried is not answered by Abraham, and this page does not answer it.

Two later Minnesota Supreme Court decisions have applied Abraham’s reasoning outside the Act and confirmed the holding as stated. In Schmitz v. United States Steel Corp., 852 N.W.2d 669, 674 (Minn. 2014), the court described Abraham as having “held that an action alleging the tort of retaliatory discharge and seeking only money damages under the Whistleblower Act … and the Minnesota Occupational Safety and Health Act … is ‘a cause of action at law with a constitutional right to jury trial,’” and reached the same conclusion for a workers’ compensation retaliation claim. And in Ford v. Minneapolis Public Schools, 874 N.W.2d 231, 234 (Minn. 2016), the court answered an argument that its limitations holding would undermine the jury right by stating flatly: “A claim under subdivision 1(1) is still a cause of action at law for which there is a jury trial right.”

Attorney’s fees: what the statute says, and what no decision says

The statutory phrase is short — an injured employee “may bring a civil action to recover any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees.” Minn. Stat. § 181.935(a).

Grammatically, the permissive “may” attaches to bringing the action. Fees are inside the list of what the action recovers.

What the retrieved decisions establish is narrow. In McGrath v. TCF Bank Savings, FSB, 502 N.W.2d 801, 809 (Minn. Ct. App. 1993), the court of appeals quoted paragraph (a), applied the general rule from Bucko v. First Minnesota Savings Bank, F.B.S., 471 N.W.2d 95, 99 (Minn. 1991) — “When ‘a prevailing party is entitled by statute to recover attorney fees at trial, that plaintiff may also be entitled to attorney fees on appeal’” — and denied appellate fees because the employee had not prevailed on appeal. That treats the statute as a prevailing-party fee provision, and it decides who does not get fees.

What is not decided in any Minnesota appellate decision retrieved for this page: whether a district court that finds a violation must award fees, and what standard governs the amount. The nearest a Minnesota appellate court has come is Cokley v. City of Otsego, 623 N.W.2d 625 (Minn. Ct. App. 2001), where a district court awarded fees “with an upward enhancement on the traditional lodestar amount,” id. at 630, and the city appealed the enhancement. The court of appeals reversed the judgment on liability and then declined to reach the fee question: “Because the case should not have been submitted to the jury, we do not reach the issues of jury instructions or the enhancement of attorney fees.” Cokley, 623 N.W.2d at 634. The enhancement question is open.

The $750 penalty, and the question the statute leaves blank

Paragraph (b) is the least-cited sentence in the Act. It applies only where an employer “failed to notify, as required under section 181.933 or 181.934,” an employee injured by a violation of § 181.932.

Those two sections are short and different from each other. Section 181.933, subd. 1, is the termination-reason letter:

An employee who has been involuntarily terminated may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination. Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.

Section 181.934 is a rulemaking directive, in a single sentence:

The Department of Labor and Industry shall promulgate rules for notification of employees by employers of an employee’s rights under sections 181.931 to 181.935.

The penalty is $25 per day per injured employee, capped at $750 per injured employee — thirty days of accrual before the cap is reached.

Paragraph (b) does not say who receives the penalty, who may sue for it, or how it is assessed. A search of published Minnesota appellate decisions citing § 181.935 turns up none construing paragraph (b). This page does not supply an answer the statute and the cases do not contain. The mechanics of the § 181.933 request, which is the more consequential of the two notice provisions for most employees, are on the termination-reason letter page.

Punitive damages: an absence, not a prohibition

Section 181.935 does not mention punitive damages, in any of its three paragraphs. That is worth stating carefully, because the honest answer is that nobody has decided the question.

Three retrieved sources frame it.

The Legislature knows how to write punitive damages into a retaliation statute. Minn. Stat. § 176.82, subd. 1, the workers’ compensation retaliation provision, does exactly that in its first sentence:

Any person discharging or threatening to discharge an employee for seeking workers’ compensation benefits or in any manner intentionally obstructing an employee seeking workers’ compensation benefits is liable in a civil action for damages incurred by the employee including any diminution in workers’ compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled.

The Minnesota Supreme Court has drawn the contrast between chapter 176 generally and § 176.82 specifically on this basis, observing in Schmitz that chapter 176 “eliminated common law remedies, including punitive damages,” while “[w]ithin chapter 176, however, Minn.Stat. § 176.82, subd. 1, explicitly provides for a civil cause of action and permits punitive damages.” Schmitz, 852 N.W.2d at 675–76.

Minnesota’s general punitive-damages statute sets a high substantive bar. Minn. Stat. § 549.20, subd. 1(a):

Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.

And a procedural one. Minn. Stat. § 549.191 forecloses pleading them at the outset: “Upon commencement of a civil action, the complaint must not seek punitive damages. After filing the suit a party may make a motion to amend the pleadings to claim punitive damages.” The motion must allege the legal basis “under section 549.20 or other law” and be supported by affidavits showing a factual basis, and the court grants leave only on finding prima facie evidence.

A search of published Minnesota Supreme Court and Court of Appeals decisions citing Minn. Stat. § 181.935 or § 181.932 together with punitive damages returns no decision holding that punitive damages are, or are not, available under § 181.935(a). Whether “any and all damages recoverable at law” reaches them is a question this page reports as open rather than answering.

Where a public employee sues

Minnesota’s general rule is that a public employee challenging a termination must proceed by writ of certiorari to the court of appeals, not by an action in district court. The Whistleblower Act is a statutory exception, and the supreme court has named it as one. Tischer v. Housing & Redevelopment Authority of Cambridge, 693 N.W.2d 426, 429 (Minn. 2005):

The legislature has enacted exceptions to this general rule, by specifically authorizing a fired public employee to bring a “civil action” in district court to challenge her dismissal on certain specified grounds. See, e.g., Minn.Stat. §§ 181.931, subd. 3; 181.935(a) (2004) (Whistleblower Act); Minn.Stat. §§ 363A.28, 363A.33 (2004) (Human Rights Act).

Tischer held that a breach-of-contract claim gets no such exception and must go by certiorari. The distinction matters on the calendar as much as on the forum: certiorari review carries a 60-day window — Minn. Stat. § 606.01 provides that “[n]o writ of certiorari shall be issued, to correct any proceeding, unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed thereby” — against the years available for a statutory claim in district court. That the Act reaches public employers at all comes from Minn. Stat. § 181.931, subd. 3, which defines “employer” to mean “any person having one or more employees in Minnesota and includes the state and any political subdivision of the state.”

What this page does not do

It reads a remedy statute and reports what Minnesota courts have held about it. It does not value a claim, estimate a recovery, or state what any particular set of facts would produce. Two of the questions above — whether fees are mandatory and whether punitive damages are available — have no Minnesota answer, and the honest form of that is to say so rather than to reason toward one.

The elements that have to be proved before any of this is reached are on the proof page; the causation element that decides most of these cases is here; the clock is here; and the statute’s substantive coverage is in the Whistleblower Act guide.