Articles Posted in Whistleblower protection

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Maine’s new marijuana law, which recently went into effect and permits some recreational marijuana use, contains a provision that prohibits employers from discriminating against workers who are 21 years old or older because they use marijuana outside of work. At the same time, the law specifically permits employers to prohibit marijuana use at work and to prohibit employees from working under the influence of marijuana.

Some employers that require employees and/or applicants to undergo drug tests as a condition of employment will have to adjust to this new law. Workers who use marijuana should also make an effort to educate themselves about the new law. There are going to be conflicts between some federal laws—such as U.S. Department of Transportation regulations—and this new Maine law because it is still a violation of federal law for anyone to use marijuana. Hopefully, the Maine and U.S. Departments of Labor will develop resources that will further help employers and workers to navigate these conflicts between state and federal law.

If you believe that your employer is violating Maine’s new marijuana law and you advise it as such, you may be protected from retaliation under Maine’s Whistleblower Protection Act. However, before you approach your employer about its non-compliance with Maine’s new marijuana law, it is a good idea for you to speak with an experienced employment lawyer. A lawyer can give you advice on how to best protect yourself from retaliation in case your employer does not take kindly to your attempt to help it comply with Maine’s new law.

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This week, the Maine Employee Rights Group scored a victory for its client in a whistleblower case that we filed against Woodlands Senior Living of Brewer. The Penobscot County Superior Court held that a jury could reasonably find that Woodlands retaliated against our client, who worked for Woodlands as a Certified Residential Medication Aide, because she blew the whistle on conditions that were detrimental to the health and safety of residents.

Our client began working at Woodlands in November 2012. She received regular pay raises during her time at Woodlands. In January 2014, she received a positive performance evaluation. After that, she raised concerns about resident care. For instance, she reported finding a resident covered in urine and feces and also residents not being fed. On May 4, 2014, our client told Woodlands management that she intended to file a complaint with the Department of Health and Human Services. The next day, Woodlands fired her.

Woodlands moved for summary judgment in this case arguing, among other things, that it was legally permitted to retaliate against our client for her reports of problems with resident care because her job duties required her to report her concerns. The court rejected Woodlands’ argument. The court held that a jury could reasonably determine that our client reported the problems with resident care out of a concern for the health and safety of the residents. And the jury, thus, could reasonably find that firing our client for her reports about resident care issues violated Maine’s Whistleblower Protection Act.

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Yesterday, a federal court in Massachusetts held that a jury could reasonably find that the Framingham School Committee retaliated against a social worker because that social worker spoke out about sexual assaults that occurred at Framingham High School (“FHS”).

According to the court, a jury could reasonably determine that the social worker heard from two female students that the same male student had sexually assaulted them. The social worker had a meeting with the FHS principal and vice principal to discuss what FHS should do about the male student who allegedly sexually assaulted the two female students who had complained to the social worker. The social worker told the principal and vice-principal that he thought they should notify the district attorney about the allegations. The social worker claims that the principal resisted this idea because he did not want the allegations to become public. When the social worker pushed back, the principal told him that if he did not like the principal’s “leadership style,” he did not have to work there.

Later in the semester, the social worker emailed the principal again expressing his dissatisfaction with how FHS had handled the sexual assault allegations and also expressed his views, in general, on the issue of sexual assault. Soon after this email, the social worker claims that the principal began to look for reasons to discipline him. Three days after the social worker sent the email, the principal disciplined the social worker for not counseling a student. The social worker claims that he was never advised of that student’s counseling needs. The social worker grieved the discipline and won his grievance.

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A new poll conducted by National Public Radio, the Robert Wood Johnson Foundation, and Harvard’s T.H. Chan School of Public Health shows that many people believe that work is bad for their health.  Here are some of the key findings about working adults in the U.S.:

  • 43% say that their work negatively affects their stress levels;
  • 28% say that their work has a bad effect on their eating habits;
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Last month a federal jury in New Hampshire found that Wal-Mart discriminated against a pharmacist because of her sex and because she blew the whistle on unsafe conditions at the store.  The pharmacist, Maureen McPadden, worked at the Seabrook Wal-Mart store for 13 years before Wal-Mart fired her in 2012.  Wal-Mart fired her after she complained about violations of pharmacy regulations and negligent training and supervision of pharmacy staff.  Wal-Mart claimed that it fired her because she lost a key but the jury, obviously, believed that was just an excuse to cover up discrimination.  Indeed, there was evidence that a male pharmacist lost a key and Wal-Mart did not fire him.

“I honestly feel the jurors listened intently,” said McPadden.  “I really feel they wanted to send a message that the little guy has a voice, that Wal-Mart did something wrong.”

“The facts most certainly support the decision,” one of McPadden’s lawyers said. “A jury of eight conscientious New Hampshire residents heard compelling evidence for five days and determined Walmart willfully and with reckless disregard acted against Maureen McPadden’s New Hampshire rights to be protected from gender discrimination. (Walmart) fired her on a pretext that she had lost her key. But 12 months later a (male) pharmacist from the Plaistow (N.H.) Walmart lost his key and he wasn’t fired.”

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This week in Harrison v. Granite Bay Care, Inc., the U.S. First Circuit Court of Appeals corrected a dangerous court-created rule that it had previously established in another whistleblower case. The First Circuit created this rule–the so-called “job duties exception” to whistleblower protection–in Winslow v. Aroostook County, a case, like Harrison, brought under Maine’s Whistleblower Protection Act (MWPA). As we previously reported, in Winslow the First Circuit held that the employer in that case could lawfully retaliate against the plaintiff for reporting unlawful activity because her job required her to report that unlawful activity. In Harrison, as we also previously reported, the trial court used the “job duties exception” in order to hold that Granite Bay could legally retaliate against Ms. Harrison because she reported to the Maine Department of Health and Human Services (DHHS) that Granite Bay neglected and/or abused its clients.

The First Circuit reversed the trial court’s decision in Harrison and held that there is no “job duties exception” to the MWPA. It explained that the trial court had misinterpreted the Winslow case and that the Winslow case had not, in fact, created a “job duties exception.” Regardless of whether the First Circuit had created a “job duties exception” in Winslow, the new rule under Harrison now focuses on the employee’s motivation when she reports unlawful or unsafe activity–not just on whether the employee’s job duties required her to report the activity. If the employee was motivated to report unlawful or unsafe activity merely because her “everyday job duties” required her to do so, she is not protected under the MWPA. However, if she reported the unlawful or unsafe activity in order to “shed light on and in opposition to an employer’s potential illegal acts,” her employer may not retaliate against her for blowing the whistle on that unlawful or unsafe activity.

The First Circuit seemed to suggest that a whistleblower who reports unlawful or unsafe activity to a government agency is more likely to be protected under the MWPA because that report to a government agency, instead of just to a manager within her organization, shows she intended to try to stop the unlawful or unsafe activity. However, the MWPA, in some instances, requires whistleblowers to first inform their employers of unlawful or unsafe activity before reporting that activity to a government agency. Thus, you still may not be protected from retaliation if you completely bypass your employer and go straight to a government agency to report your employer’s unlawful or unsafe activities.

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This week the Connecticut Supreme Court issued a decision in Trusz v. UBS Realty Investors which expanded employees’ free speech rights. Mr. Trusz worked for UBS as a managing director and the head of its valuation unit. In this role, Mr. Trusz managed UBS’s process for deciding the value of its real estate investment funds. In connection with his job, Mr. Trusz informed UBS that it had made errors in its valuation of certain properties that UBS held in some of its investment funds. He told UBS, among other things, that he thought UBS had an obligation to inform investors of the errors and to return excessive fees to investors that UBS had collected because of the errors. When UBS refused to take the steps Mr. Trusz said were necessary, Mr. Trusz told UBS that he thought it was violating legal and ethical obligations to investors. UBS subsequently fired Mr. Trusz and he sued claiming, among other things, that UBS fired him in retaliation for the concerns he raised about UBS’s handling of the valuation errors.

Mr. Trusz’s case required the Connecticut Supreme Court to decide whether it would follow the decision of the U.S. Supreme Court in Garcetti v. Ceballos (2006). In Garcetti, the Supreme Court held that an employer could legally retaliate against an employee who exercised her free speech rights if the employee engaged in free speech as part of her official job duties.

Garcetti only applies to public employees and employers, like public school teachers and police officers, because the First Amendment only restricts the activities of governments. However, in Connecticut, there is a law that prohibits both public and private employers from retaliating against an employee because he exercised his free speech rights under the U.S. or Connecticut Constitutions. This is why constitutional issues came into play in Mr. Trusz’s case even though it involved a private employer.

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In October last year we reported on a federal jury verdict that the Maine Employee Rights Group had obtained for our client Valerie Peasley. The jury found that Regis Corporation, which owns and operates the hair salon in Bangor where Ms. Peasley worked, unlawfully fired Ms. Peasley because she blew the whistle on people using and selling illegal drugs in the workplace.  The jury awarded Ms. Peasley $120,000.

Last week, the court awarded Ms. Peasley an additional amount of over $20,700 for back pay and lost employee benefits.  The court also ordered Regis to reinstate Ms. Peasley to her former position at the hair salon.  Regis objected to reinstatement, arguing that returning Ms. Peasley to the hair salon would be a “recipe for future antagonism and problems.”  The court held that the “overarching preference” under employment discrimination laws is to reinstate unlawfully terminated employees to their former positions.  Potential hostility in the workplace upon the employee’s return is not a sufficient reason to deny reinstatement.  Citing a First Circuit case, the court reasoned that “the goals of Title VII would be ill served if we permitted such routine antagonism to be an adequate ground for denying reinstatement.”

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Yesterday in Bangor, a jury held that Regis Corporation violated Maine’s Whistleblower Protection Act when it retaliated against former employee Valerie Peasley.  Regis operates hair salons nationwide and Ms. Peasley worked at one of Regis’s salons in Bangor.  Attorneys Peter Thompson and Chad Hansen, of the Maine Employee Rights Group, represented Ms. Peasley at trial.

Regis terminated Ms. Peasley because she reported to the company that some employees at her salon were using and selling illegal drugs in the workplace.  The jury awarded Ms. Peasley $40,000 in compensatory damages and $80,000 in punitive damages.

Ms. Peasley worked for Regis for more than a decade.  After she and another employee reported the illegal drug activity to Regis, they were labeled “narcs” at work.  The people who engaged in the illegal drug activity and a manager at the salon were friends.  Just three weeks after Ms. Peasley reported the illegal drug activity, Regis fired her.

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Yesterday, the U.S. District Court of Maine held that Granite Bay Care, Inc., could legally retaliate against an employee who made a mandated report  to the Maine Department of Health and Human Services (DHHS) that the company abused and/or neglected some of its clients.

Granite Bay, based in Portland, provides services to adult clients with cognitive and physical disabilities.  Torrey Harrison worked for Granite Bay as its Training Director from March to December 2010.  During Harrison’s time working for Granite Bay, she filed complaints with DHHS about Granite Bay allegedly neglecting and/or abusing its clients.  For instance, she filed a complaint with DHHS because she believed Granite Bay failed to pay the electricity bill for two of the homes where its disabled clients lived resulting in the electricity being shut off.  Granite Bay subsequently fired Harrison allegedly because she had filed these complaints with DHHS.  Harrison sued Granite Bay under Maine’s Whistleblower Protection Act (MWPA).

Granite Bay argued that it could legally retaliate against Harrison for filing her complaints with DHHS because filing complaints with DHHS was part of her job duties.  The District Court, relying on Winslow v. Aroostook County, a misguided decision of the First Circuit Court of Appeals that we’ve previously discussedheld that since “the job duties of every employee of [Granite Bay] included reporting abuse, neglect, and exploitation to her supervisors and to DHHS,” Granite Bay was free to retaliate against Harrison because she reported the company’s abuse and neglect of its clients to DHHS.

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