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Be alert for retaliation after employee reports wrongdoing

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Performance Reviews

The Minnesota Whistleblower Act (MWA) is designed to protect Minnesota employees who are punished for reporting company practices they believe are illegal.

To make an MWA case, the employee has to prove two things: (1) that what she complained about was illegal and (2) that she believed what she reported was illegal. (The law also protects employees who refuse to participate in illegal conduct and are punished.)

It’s not HR’s job to determine whether anything illegal occurred. However, when an employee has blown the whistle on a company practice, HR must make sure any future discipline is warranted and not driven by an ulterior motive.

A whistle-blower with a previously clean disciplinary history and good performance reviews will likely contact an attorney if she experiences any discipline after filing a complaint.

Recent case:
Naomi Chial sold cell phones and service for Sprint. She earned a commission on each new cell phone customer but not for additional sales to old customers.

Chial attended a Sprint seminar at which a retail sales manager suggested salespersons could increase their commissions by selling customers a second line and drawing up a new contract for service. Then, he explained, the salesperson could transfer the new line to the old contract. In the end, the customer would not pay more, but the salesperson would earn an additional commission.

Chial told her supervisor she thought this practice was unethical. (Eventually, the company agreed and banned it.) Then Chial’s supervisor began writing her up for infractions and eventually fired her. She sued under the MWA.

But the court dismissed her case on a technicality. While it said the sales technique was illegal theft under Minnesota criminal law, Chial testified that she didn’t believe at the time she complained that the practice was actually illegal. That sunk her case. (Chial v. Sprint, No. 07-CV-0123, DC MN, 2008)

Final note: You can be sure that word of this case is getting out. Look for whistle-blowing employees to now make sure they testify that they firmly believed whatever they reported was illegal.

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