Maine Employment Lawyer Blog

On May 24, 2010, a Cumberland County Superior Court jury awarded Michael Afthim $1,015,000 in damages in connection with Mr. Afthim's lawsuit against his former employer, Alternative Labor Resources ("ALR") for violating Mr. Afthim's rights under the Maine Whistleblowers' Protection Act and defamation.

Mr. Afthim was a superintendent employed by ALR. Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift. Once again, Mr. Afthim brought his concerns to ALR management and they expressed frustration with him for his complaints. ALR then fired Mr. Afthim for his complaints.

ALR subsequently lied about its reasons for terminating Mr. Afthim's employment and told the Department of Labor and the Maine Human Rights Commission that Mr. Afthim had been terminated for poor performance. Also, Mr. Afthim was forced to disclose ALR's false explanation for his termination to potential employers who would routinely ask why he had been terminated from his last place of employment. As a result Mr. Afthim suffered significant lost wages.

The first step in pursuing a whistleblower retaliation case in Maine is to file a Charge of Discrimination with the Maine Human Rights Commission. Mr. Afthim filed a Charge of Discrimination with the assistance of his attorneys. The Maine Human Rights Commission assigned an investigator and after investigating the case concluded that ALR had unlawfully retaliated against Mr. Afthim.

Mr. Afthim then filed his case in court. The court concluded that 1) Mr. Afthim had been terminated because of his reports about his employees' safety in violation of the Maine Human Rights Act ("MHRA") and the Maine Whistleblowers' Protection Act and then defamed Mr. Afthim which made it all the more difficult for him to find other work. The Court also ALR's actions violated the ("MWPA"), and Maine's common law prohibitation on defamation.

On May 24, 2010, the jury concluded that Mr. Afthim was entitled to $115,000 for lost wages, $200,000 for compensatory damages, and $700, 000 for punitive damages.

Maine's Whistelblower Protection Act, 26 M.R.S.A. Sec. 831 et. seq., prohibits employers from terminating or otherwise retaliating against their employees for making good faith complaints about things that the employee believes to be unlawful and conditions that they reasonably believe put at risk the health and safety of individuals. The Act also protects employees who refuse to carry out directives from their employers that they believe to be unlawful or that they reasonably believe create a risk of serious injury or death to themselves or others. The Act also prohibits employers from retaliating against employees for participating in a public investigation, hearing, or trial. Last, the Act protects workers in the health care field from reporting what they reasonably believe to be deviations from the applicable standard of care.

When a jury finds that an employer has violated an employee's rights in the Maine Whistleblowers' Protection Act, they may award the employee their lost wages and benefits, their attorneys fees, litigation costs, compensatory damages to compensate the employee for the harms and losses associated with the retaliation, and punitive damages to punish an employer.

Mr. Afthim was represented by Peter Thompson & Associates.

There are federal and state laws that protect truck drivers in Maine who refuse to operate illegally. For instance, if you have refused to drive longer than the DOT allows, refused to doctor your logbook, refused to drive an unsafe truck, or complained about violations of DOT regulations, the law prohibits your employer from retaliating against you. (Incidentally, that was not an exhaustive list of illegal reasons for an employer to retaliate against you, just some examples.) The federal law that protects you is the Surface Transportation Assistance Act (STAA). In Maine, the Whistleblower Protection Act (WPA) also protects you.

While it is illegal for employers to retaliate against truck drivers who refuse to violate the law, or complain about violations of the law, it is sometimes hard to prove such retaliation took place. It is even harder to prove retaliation took place if you do not have a good lawyer on your side. So, if you believe that your employer is going to retaliate against you, or has already retaliated against you, you should contact an experienced employment lawyer who is knowledgeable about the STAA and Maine's WPA.

The Maine Supreme Court issued its decision in a whistleblower case, Maine Human Rights Commission et al. v. Saddleback, Inc. et al., on July 16, 2009. The Maine Human Rights Commission (MHRC) brought this case against Saddleback claiming that Saddleback had violated Maine's Whistleblower Protection Act (MWPA). The MWPA prohibits employers from retaliating against employees when they report unsafe or unlawful activities. The case centered around the termination of Robert Duggan, Jr.'s employment. (For those who are not from Maine, Saddleback is a ski area in central Maine.)

The relevant facts of the case, according to the Superior Court, were as follows:

Saddleback contracted with Mr. Duggan's employer, Integrity Electrical Installation & Service, Inc. (Integrity), to work on the installation of some snowmaking equipment. As an employee of Integrity, Mr. Duggan worked on this project as an electrician and foreman. During the course of his work, Mr. Duggan observed Saddleback employees working in an unlawful and unsafe manner. He observed Saddleback employees drinking on the job. They were performing electrical work with high voltage electrical lines even though they did not have the proper licenses to do that kind of work. On one occasion, Mr. Duggan witnessed Saddleback employees backfilling boulders and debris on top of high voltage lines in violation of the Electrical Code.

Mr. Duggan complained about this unlawful and unsafe behavior to representatives of Saddleback and Integrity. Mr. Duggan warned Integrity that he intended to report this unlawful and unsafe behavior to the Maine State Electrician's Examining Board; which he subsequently did. Saddleback became aware that Mr. Duggan had called the State to report them and, in retaliation, told Integrity to terminate Mr. Duggan. Integrity complied with Saddleback's wishes and terminated Mr. Duggan. The MHRC argued that Integrity complied with Saddleback's wishes because it was concerned about losing its contract with Saddleback.

Saddleback argued that it did not violate the MWPA because it did not employ Mr. Duggan. It argued that employees may only bring claims against their own employers under the MWPA. The Superior Court and the Maine Supreme Court rejected this argument. The courts concluded that a company like Saddleback may be held liable under the MWPA if it coerces another company to illegally retaliate against an employee.

The courts' decisions in this case appear to be inconsistent with a case the Maine Supreme Court decided in 2008, Costain v. Sunbury Primary Care, P.A. In Costain, the Maine Supreme Court ruled that the MWPA does not protect an employee from retaliation unless she complains about her own employer's unlawful activities. In Mr. Duggan's case, he did not complain about his own employer's unlawful activities--he complained about Saddleback's unlawful activities. As a Maine employment law firm, it will be interesting to see how courts in the future will attempt to reconcile these cases.