Whistleblower SOL and contingency fees

[cbg]

And I am the one who would have to spend my time, unpaid, looking for multiple statutes, most of which would be of no use to you. When you are paying me to do that, I'll do it. As long as you're not, I'm not.

It is your right to decide what information you can safely transmit on a public internet board. That's fine, and if you're not comfortable with posting it you shouldn't post it. But likewise it is my right to decide how best to spend what time I have on these boards. I have limited time available and if I feel it would be better served on posts where I have clear information about what is needed, that is my choice to make. Neither I nor anyone else here owes you an answer.

I'm not upset and there are no hard feelings on my part - just explaining my position.

 

[Bill Johns]

So let me get this straight. You want someone here to guess on what it exactly is and give you advice which you aren't going to take anyway, much as you aren't taking the advice of the lawyers you already talked to?

43A seems to include every law your state has dealing with employees of the state. That is a little broad.

Well it rules out a lot too. No federal laws were violated.

Whose advice am I not taking? The advice of attorneys who tell me I have 6 years or the ones who say I have only 2? I havent acted on anything yet, so how can you say I'm not taking the advice of either? I don't know which group is more likely to be right, and they are pretty evenly split on it. I'm not asking for a specific opinion on SOL that applies to the specific violation. I'm not looking for a tie-breaker vote from the internet. I'm trying to understand why there is even a difference of opinion. I'm trying to understand how I can make the decision as to which SOL applies, with attorneys split on the question.

Obviously assuming its a 2 year SOL is the safer assumption, but it also requires extreme hardship on my part to pursue it in that time frame. Those are hardships I'd rather avoid if I actually have more time.

 

[Zigner]

Well it rules out a lot too. No federal laws were violated.

Whose advice am I not taking? The advice of attorneys who tell me I have 6 years or the ones who say I have only 2? I havent acted on anything yet, so how can you say I'm not taking the advice of either? I don't know which group is more likely to be right, and they are pretty evenly split on it. I'm not asking for a specific opinion on SOL that applies to the specific violation. I'm not looking for a tie-breaker vote from the internet. I'm trying to understand why there is even a difference of opinion. I'm trying to understand how I can make the decision as to which SOL applies, with attorneys split on the question.

Obviously assuming its a 2 year SOL is the safer assumption, but it also requires extreme hardship on my part to pursue it in that time frame. Those are hardships I'd rather avoid if I actually have more time.

Your best bet would be to ask one of the attorneys in the 6-year camp to explain why s/he doesn't feel that the 2-year SoL applies. Then, likewise, ask one of the attorneys in the 2-year camp why s/he doesn't feel the 6-year SoL applies.

 

[quincy]

... Obviously assuming its a 2 year SOL is the safer assumption, but it also requires extreme hardship on my part to pursue it in that time frame. Those are hardships I'd rather avoid if I actually have more time.

You are correct that assuming the 2 year statute of limitations applies is smarter. If you have a strong case, the hardships you suffer now should be short-lived.

Perhaps the better question to be asking the employment law lawyers then is, "Do I have a strong case worth pursuing?"

If the answer is, "No," it really doesn't matter when you file.

 

[HRZ]

THe MN case on 6 year point may be " Ford " .....and 6 year SOL in that applied to reporting issues not refusal issues which remain at 2 years..

 

[HRZ]

Minnesota Supreme Court Holds Six-Year Statute of Limitations Applies to Reporting Claims under the Minnesota Whistleblower Act

BY EMILY MCNEE, KERRY MIDDLETON AND JOE WEINER ON JANUARY 22, 2016 PRINT
On January 20, 2016, the Minnesota Supreme Court affirmed the Minnesota Court of Appeals’ decision in Ford v. Minneapolis Public Schools in a narrow holding that leaves unanswered some important questions regarding whistleblower liability.1

The Minnesota Whistleblower Act (“MWA”), Minn. Stat. § 181.932 (2012), prohibits retaliation against an employee who makes a good-faith report of a violation or suspected violation of law. Prior to the Ford decision, Minnesota courts had applied a two-year limitations period to these claims.2 With its decision in Ford, the Minnesota Supreme Court has held that the statute of limitations for a retaliation claim for reporting is six years for a cause of action arising under this law.

 

[quincy]

THe MN case on 6 year point may be " Ford " .....and 6 year SOL in that applied to reporting issues not refusal issues which remain at 2 years..

A link to what you quoted was earlier provided by Bill Johns and edited from his post. He has read it already.

There are questions that remain after the Minnesota Supreme Court Opinion, hence the questions asked here by Bill Johnson.

The question of which statute of limitations applies involves determining common law or statute origin and the question of which statute of limitations will apply to Bill depends on facts he is reluctant to disclose on this forum.

 

[Bill Johns]

A link to what you quoted was earlier provided by Bill Johns and edited from his post. He has read it already.

There are questions that remain after the Minnesota Supreme Court Opinion, hence the questions asked here by Bill Johnson.

The question of which statute of limitations applies involves determining common law or statute origin and the question of which statute of limitations will apply to Bill depends on facts he is reluctant to disclose on this forum.

I am reluctant to disclose specific details, as it seems extremely unwise to reveal those in a public forum. I'd rather be safe than sorry. I understand this may frustrate some but that's not my intent.

But I also sense a reluctance from forum members to discuss details of how the SOL determination would be made. Perhaps I don't have the ability to understand it, but I'd like to try. To my layman's ears the linked ruling is very clear that its 6 years, and I'd like to better understand where the uncertainty comes in.

 

[PayrollHRGuy]

The problem is that without enough information on your issue it is very difficult if not impossible to help you. And while I fully understand your reluctance to provide that information you should understand that if the facts are so unique to be identifying then any case you cite may well have nothing to do with your case or any other case.

Also if either Bill or Johns is your real name you might want to wait a while and repost the issue with a better pseudonym.

 

[quincy]

I am reluctant to disclose specific details, as it seems extremely unwise to reveal those in a public forum. I'd rather be safe than sorry. I understand this may frustrate some but that's not my intent.

But I also sense a reluctance from forum members to discuss details of how the SOL determination would be made. Perhaps I don't have the ability to understand it, but I'd like to try. To my layman's ears the linked ruling is very clear that its 6 years, and I'd like to better understand where the uncertainty comes in.

If ithe Minnesota Supreme Court made the statute of limitations for whistleblower claims clear, there would be no questions being raised.

Minnesota has two statute of limitations for whistleblower claims, which is unusual to begin with. A 2 year statute of limitations applies to claims that arise from common law, and a 6 year statute of limitations can apply to claims arising from a statute.

The Minnesota Supreme Court has said for reporting violations of the law that fall under the Minnesota Whistleblower Act 1(1) (see statute 181.932), a 6 year statute of limitations for reporting applies. The Supreme Court did not address claims arising under MWA 1(3), refusal claims (those wrongful termination or retaliation claims by employees that come from refusing to violate a law) or non-refusal claims under the Act or refusal claims recognized under common law.

It appears to be a very narrow decision based on the specific facts of the case and it appears to have created two statute of limitations for claims under the Whistleblower Act.

Without knowing your cause of action, there is no way to say whether your claim has a 6 year statute of limitations or a 2 year statute of limitations or whether it is a claim whose statute of limitations is anyone's guess.

You should not speak about your claim online if you are wary of doing so. We all understand that some information should not be posted on a public forum. We ask YOU to understand that, without the facts, we cannot assist you.

I again recommend that if there is any question on the statute of limitations for your claim that you follow the advice of the lawyer you hire or use the shorter 2 year SOL.

Good luck.

 

[Bill Johns]

I appreciate your taking the time to explain it Quincy. I accept that I may never understand it fully, but let me see if I'm getting any closer.

Wouldn't everything under arising under reports of 43A violations (as mine does) fall under the category of "statute/state law" rather than "common law", therefore activating the 6 year SOL? That would be far to simple, so I must be wrong.

Anyway I don't want to beat that horse if its beyond my ability to grasp.

Another question that has been raised is whether a law must have in fact been violated in order to have a meritorious claim. This also is a bit confusing because 181.932 clearly refers to reports of "a violation, suspected violation, or planned violation". Several attorneys have suggested the case could be thrown out if the judge decides law wasn't violated. I believed and still believe that a 43A statute was violated, but the wording of the statute leaves enough room that it could be argued either way. There is no doubt I was retaliated against for my report though.

 

[quincy]

I appreciate your taking the time to explain it Quincy. I accept that I may never understand it fully, but let me see if I'm getting any closer.

Wouldn't everything under arising under reports of 43A violations (as mine does) fall under the category of "statute/state law" rather than "common law", therefore activating the 6 year SOL? That would be far to simple, so I must be wrong.

Anyway I don't want to beat that horse if its beyond my ability to grasp.

Another question that has been raised is whether a law must have in fact been violated in order to have a meritorious claim. This also is a bit confusing because 181.932 clearly refers to reports of "a violation, suspected violation, or planned violation". Several attorneys have suggested the case could be thrown out if the judge decides law wasn't violated. I believed and still believe that a 43A statute was violated, but the wording of the statute leaves enough room that it could be argued either way. There is no doubt I was retaliated against for my report though.

It appears to me, based on the incomplete information you have provided, that, if you were retaliated against for reporting a suspected violation of the law under MWA, you are given 6 years to file your claim. If you were retaliated against for refusing to violate a law, you have either 2 years (common law) or 6 years (by statute) to file a claim.

But this all depends on facts you will not disclose. My opinion is not worth much because I could be wrong. And it does not really answer your question of which statute of limitations applies to you.

The Minnesota Supreme Court has left it to your state legislature to provide clarification.

You should sit down with an attorney in your area whom you have retained to represent you and discuss your claim thoroughly with this attorney.

What a judge will or won't do is something I can't tell you.

 

[Bill Johns]

Thanks Quincy, that makes as much sense as I can hope for so I'll drop the SOL issue.

As for whether I have a strong case worth pursuing, do you think an attorney would actually answer that kind of question directly? I have a feeling they will dance around it. What I have been told by a couple firms is that "you have a case" but its very expensive to pursue a claim against the state and their prices were out of reach. Another said he would do it on contingency if it was against a private employer, but would have to charge a fee because the opponent has "almost unlimited money to spend on its defense, they will lie, and they will not settle". His fee was a lot more reasonable than some of the others and possibly attainable, but obviously he has some doubt about the outcome or he would do it on contingency basis.

With all that I've read, I'm just not sure anyone can say even a "strong case" has a likehood of winning. The MN law and its interpretation seems to be a muddled mess of perils and uncertainties that rarely favors employees. I don't really understand this article after a certain point (and I'm not sure if I'm allowed to post it since my other link was nuked with no explanation) but it seems to illustrate that point. http://mnbenchbar.com/2017/01/reanimating-dead-law/

 

[cbg]

Now that's a question I will answer.

Another said he would do it on contingency if it was against a private employer, but would have to charge a fee because the opponent has "almost unlimited money to spend on its defense, they will lie, and they will not settle".

That is probably the best answer you're going to get. NO reputable attorney is going to tell you that you are guaranteed a win, even against a private employer, and it's a lot easier to win a case against a private employer than against the state. If you find an attorney who says there is no chance you'll lose, run far, very far away from that attorney.

From the reactions you are getting, there are two possibilities. One is that yes, you have a strong but not perfect case. The other is that you do NOT have a strong case and they attorneys are politely easing you out of their offices. Which it is we cannot tell since you are not sharing any facts with us. (That's not meant unkindly - as I said above, you should not post anything you are not comfortable posting; I'm just stating a truth, which is that we can't know if you have any case at all, let alone a strong one, if we don't know what happened.) How far you want to take this is up to you.

 

[quincy]

Thanks Quincy, that makes as much sense as I can hope for so I'll drop the SOL issue.

As for whether I have a strong case worth pursuing, do you think an attorney would actually answer that kind of question directly? I have a feeling they will dance around it. What I have been told by a couple firms is that "you have a case" but its very expensive to pursue a claim against the state and their prices were out of reach. Another said he would do it on contingency if it was against a private employer, but would have to charge a fee because the opponent has "almost unlimited money to spend on its defense, they will lie, and they will not settle". His fee was a lot more reasonable than some of the others and possibly attainable, but obviously he has some doubt about the outcome or he would do it on contingency basis.

With all that I've read, I'm just not sure anyone can say even a "strong case" has a likehood of winning. The MN law and its interpretation seems to be a muddled mess of perils and uncertainties that rarely favors employees. I don't really understand this article after a certain point (and I'm not sure if I'm allowed to post it since my other link was nuked with no explanation) but it seems to illustrate that point. http://mnbenchbar.com/2017/01/reanimating-dead-law/

First, links that are not .gov, .org, or .edu are routinely edited from posts.

Some attorneys will be upfront and say they do not think you have a cause of action worth pursuing. Others might put a high price tag on representation, either to discourage you from pursuing an action that has little chance of success or to insure a payday that might not otherwise come from a successful suit. And yet others might say you have a case but they won't take you on as a client, for any of a number of reasons. All are indications that your claim is not that great. Most attorneys will not refuse a case with merit (if it falls within their area of expertise) if they can expect fair compensation in the end for their time and their work.

What you do at this point is up to you. I think you should sit down with an attorney in your area who specializes in employment law and pay the attorney for a professional review and opinion. You are unlikely to get much more than generalized information online or over the phone. You need an in depth look at the facts.

Good luck.