1. What legal protection does North Dakota provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
North Dakota recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to the public policy of North Dakota. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the discharge violates public policy.
To determine what constitutes public policy, North Dakota courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because a North Dakota statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening North Dakota's public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the North Dakota Legislative Assembly has adopted additional protections for employees. Most notably, North Dakota has adopted a general whistleblower protection statute that protects employees who report illegal activity. Also, several other North Dakota statutes contain anti-retaliation provisions. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: abuse or neglect of a child, abuse or neglect of a person with developmental disabilities, abuse or neglect of a vulnerable adult, discrimination, labor organization, long-term care facilities, smoking, wage discrimination (equal pay), wages and hours, and workers' compensation.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in retaliation for complying a clear public policy. Specifically, employees are protected from retaliation for the following protected activities:
- Seeking workers' compensation benefits
- Honoring a subpoena and testifying truthfully
Statutory Protections
General Whistleblower Protection: An employee may not be discharged (or discriminated against) in retaliation for the following activities:
- Reporting a suspected violation of federal, state, or local law. The report may be made to the employer, a governmental body, or a law enforcement official. The report must be in good faith.
- Being requested by a public body or public official to participate in an investigation, hearing, or inquiry.
- Refusing to perform an action, as ordered by the employer, that the employee believes is illegal. The employee's belief must be objectively reasonable. The employee must also inform the employer that she is disobeying the order for this reason.
Abuse or Neglect of a Child: An employee may not be retaliated against for reporting suspected child abuse or child neglect. The report must be made in good faith. The employee's suspicion must also be reasonable. An employer who violates this provision is guilty of a misdemeanor. N.D. Cent. Code § 50-25.1-09.1.
Abuse or Neglect of a Person with Developmental Disabilities: An employee may not be retaliated against for reporting suspected abuse, neglect, or exploitation of a person with developmental disabilities or mental illness. The employee's suspicion must be reasonable. An employer who violates this provision is guilty of a misdemeanor. N.D. Cent. Code § 25-01.3-05.
Abuse or Neglect of a Vulnerable Adult: An employee may not be retaliated against for reporting suspected abuse or neglect of a vulnerable adult. A vulnerable adult means an adult who has a substantial mental or functional impairment. To be protected, the report must be made in good faith. The employee's suspicion must also be reasonable. An employer who violates this provision is guilty of a misdemeanor. N.D. Cent. Code § 50-25.2-11.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for in good faith filing a complaint, testifying, assisting, or participating in an investigation, proceeding, hearing, or lawsuit concerning unlawful discrimination. N.D. Cent. Code § 14-02.4-18.
Labor Organizations: An employee may not be retaliated against for participating in a labor organization or for testifying or filing charges under the North Dakota Labor-Management Relations Act. N.D. Cent. Code § 34-12-03.
Long-Term Care Facilities: An employee who works for a long-term care facility may not be retaliated against for filing a complaint on behalf of a resident, or providing information to a long-term care ombudsman concerning long-term care facilities. N.D. Cent. Code § 50-10.1-05.
Smoking: An employee may not be retaliated against for reporting violations of a law that restricts smoking in certain enclosed areas, including many places of employment. Nor may an employee be retaliated against for exercising rights under that law. N.D. Cent. Code § 23-12-10.
Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for taking an action to invoke or assist in the enforcement of North Dakota's Equal Pay for Men and Women laws. Under these laws, employers are prohibited from discriminating on the basis of sex in the payment of wages. N.D. Cent. Code § 34-06.1-03.
Wages and Hours: An employee may not be discharged (or discriminated against) in retaliation for testifying in an investigation or proceeding concerning wages and hours laws, including North Dakota minimum wage laws. An employer who violates this provision is guilty of a misdemeanor. N.D. Cent. Code § 34-06-18.
Workers' Compensation: An employee may not be discharged in retaliation for seeking workers' compensation benefits (workforce safety and insurance benefits). An employer who violates this provision is guilty of a misdemeanor. N.D. Cent. Code § 65-05-37.
3. How do I file a whistleblower or retaliation claim in North Dakota?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 6 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. N.D. Cent. Code § 28-01-16.
General Whistleblower Protection: An employee has two options: (1) file a complaint with the North Dakota Department of Labor, or (2) file a lawsuit.
An employee may file a complaint with the North Dakota Department of Labor. This complaint must be filed within 300 days of the retaliatory action. Filing a complaint with the Department of Labor will not preclude an employee from filing a lawsuit at a later date. If you believe you have a claim, you should contact the Department of Labor immediately at:
North Dakota Department of Labor
600 East Boulevard Avenue, Dept 406
Bismarck ND 58505-0340
Phone: (701) 328-2660
Toll-Free: 1-800-582-8032
TTY: 1-800-366-6888 or 1-800-366-6889
Fax: (701) 328-2031
E-mail: labor@nd.gov
The Department has made an employment retaliation (whistleblower) questionnaire/affidavit form available on their web site with accompanying instructions. You can also visit the Department of Labor in the State Capitol, 13th Floor in Bismarck.
Alternatively, an employee may file a lawsuit in an appropriate court. However, before an employee can file a lawsuit, an employee must first attempt to resolve the matter through the employer's internal grievance procedures, as specified in an employment contract or collective bargaining agreement. The lawsuit must be filed within 180 days of the retaliatory action. If the employee attempted to resolve the matter through an employer's internal grievance procedures, the lawsuit must be filed within 180 days of the completion of those grievance procedures. If the employee filed a complaint with the Department of Labor, but the complaint was never resolved, the employee can still file a lawsuit; the lawsuit must be filed within 180 days of the completion of the administrative hearings at the Department of Labor. If you intend to file a lawsuit, you should contact a lawyer immediately.
Discrimination: An employee may file a complaint with North Dakota Labor Department, Division of Human Rights. Alternatively, an employee may file a lawsuit in an appropriate court. Either way, an employee must file the complaint or lawsuit within 300 days of the retaliatory action. If you believe you have a claim, you should contact the Division of Human Rights or a lawyer immediately.
The Division of Human Rights has made a complaint inquiry form available on their web site. Informational brochures are also available.. The Division of Human Rights has offices in the State Capitol, 13th Floor in Bismarck. They can also be reached at:
North Dakota Department of Labor
Division of Human Rights
600 East Boulevard Avenue, Dept 406
Bismarck ND 58505-0340
Phone: (701) 328-2660
Toll-Free: 1-800-582-8032
TTY: 1-800-366-6888 or 1-800-366-6889
Fax: (701) 328-2031
E-mail: humanrights@nd.gov
Wage Discrimination (Equal Pay): An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer.