The astonishing answer to this question is, sometimes, yes; an employer can sometimes get away with firing an employee for reporting unlawful activity if that employee’s job duties required him to report the unlawful activity. In Winslow v. Aroostook County, the U.S. First Circuit Court of Appeals interpreted one section of the Maine Whistleblower Protection Act (MWPA) to allow employers to discriminate against employees who blow the whistle on unlawful activity “if it is part of his or her job responsibilities to” blow the whistle. Maine’s Supreme Judicial Court, which has the final say on what the MWPA prohibits, has not yet weighed in on this issue, however; and other sections of the MWPA may provide more protection for employees than others. Nevertheless, court decisions like Winslow are troubling.
In other states, courts are split on this issue. In New Jersey, one appellate court has held that New Jersey’s whistleblower protection law prohibits employers from discriminating against employees who blow the whistle on unlawful activity if their job duties require them to do so. Another New Jersey appellate court went the opposite way. There has been a large amount of public debate over this issue in New Jersey and the New Jersey Supreme Court will likely settle the issue in a case it has agreed to hear this fall.
It does not make much sense to permit employers to discriminate against employees who blow the whistle when, by blowing the whistle, they’re just doing the job their employer hired them to do. Such a rule places these employees in an untenable Catch-22 situation. If they don’t blow the whistle on their employer’s unlawful activity, they can get fired for not doing their jobs. At the same time, if they do blow the whistle on their employer’s unlawful activity, they can get fired in retaliation. Moreover, from a public policy standpoint, we want to encourage whistleblowers to report unlawful activity, whether it is their job to report it or not, because that is the way unlawful activity is brought to light and stopped. Permitting employers to retaliate against any whistleblower undermines this public policy goal.
While it seems like it should be straightforward, it is actually more complicated than you might think to determine whether you were just doing your job when you blew the whistle on unlawful activity. You may be able to blow the whistle in a certain way so that you are not just doing your job and, thus, gain protection under a whistleblower protection statute. For that reason, it is important that you contact an experienced employment lawyer for advice as soon as you decide that you want to blow the whistle on some unlawful activity at work. A good lawyer will be able to advise you on the best way to go about blowing the whistle so that if your employer retaliates against you, you’ll have some rights.