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First Circuit corrects dangerous court-created rule in whistleblower cases

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.

While the First Circuit improved the state of the law for whistleblowers in Maine, our previous advice to contact an experienced employment lawyer before you blow the whistle on your employer’s unlawful activity still stands. Whether you’ll be able to successfully protect yourself from retaliation for blowing the whistle on unlawful or unsafe activity may depend on how you blow the whistle and what you say when you blow it. The Maine Employee Rights Group has successfully litigated whistleblower cases and is very familiar with the MWPA. We are committed to holding employer’s accountable for retaliating against whistleblowers and we are ready to assist you if you have or are thinking about blowing the whistle on your employer’s unlawful or unsafe activities.

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