Law Office of Lori D. Ecker

1. What legal protection does Maine provide employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
Maine courts do not recognize a common law claim for wrongful termination. Thus, an employee may be discharged for any reason at any time, unless that reason is prohibited by a constitutional provision, statute, or contractual agreement.

Statutory Protections
The Maine Legislature has adopted extensive statutory protections for certain activities. Most notably, Maine has a general whistleblower protection statute the Whistleblower Protection Act. Also, several other Maine statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, forestry employees, occupational safety and health, public utility employees, smoking, and workers' compensation.

On a related note, in Maine, an employee may request that his employer provide the reasons for his discharge. Employers are required by law to provide the reasons within 15 days.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
Maine does not recognize a common law claim for wrongful termination. Accordingly, employees must rely exclusively on the statutory protections passed by the Maine Legislature.

Statutory Protections
General Whistleblower Protection: Under the Whistleblowers' Protection Act , an employee may not be discharged (or discriminated against) in retaliation for performing the following activities:

• Reporting a suspected violation of law or rule (federal, state, or local). The report may be made (in writing or orally) to either the employer or a public body. However, if an employee chooses to report the violation to a public body, he must first inform a supervisor of the violation and allow the employer a reasonable opportunity to correct the violation. If the employee has a specific reason to believe that reporting a violation to his employer will be pointless, the employee is not obligated to first inform his employer. Also, the employee's suspicion that a violation has occurred need not be accurate; rather, the employee needs only to have a reasonable belief that a violation has occurred. The report must be made in good faith.
• Reporting a dangerous condition (a condition that would put health or safety of the employee or another person at risk). The report may be made (in writing or orally) to either to employer or a public body. However, if an employee chooses to report the dangerous condition to a public body, he must first inform a supervisor of the dangerous condition and allow the employer a reasonable opportunity to correct the condition. If the employee has a specific reason to believe that reporting the condition to his employer will be pointless, the employee is not obligated to first inform his employer. Also, the employee's suspicion that a dangerous condition exists need not be accurate; rather, the employee needs only to have a reasonable belief that a dangerous condition exists. The report must be made in good faith.
• Participating in an investigation, hearing, or inquiry held by a public body, or participating in a court action.
• Refusing to commit an illegal act (of federal, state, or local law) or refusing to commit an act that could seriously injure (or kill) the employee or another individual. To be protected, the employee must first request that the employer correct the illegal activity or dangerous condition.
• Reporting suspected malpractice by a health care employer (health care provider, health care practitioner, or health care entity) who is responsible for a patient's care. The report may be made to the employer, to the patient, or to the appropriate licensing authority. The report may be written or oral. The employee's suspicion need not be accurate; rather, the employee needs only to have a reasonable belief that the health care employer is deviating from appropriate standard of care. The report must be made in good faith. Also, the report must not violate state and federal privacy laws.
• Reporting suspected abuse, as required by law. Certain health care employees and law enforcement officials are required by law to disclose suspected abuse of adults. In addition, certain health care employees, government officials, and caretakers of children are required by law to disclose suspected abuse of children. If a person is required by law to report suspected abuse, that person may not be discharged or discriminated against in retaliation for making a report.

Also, the Human Rights Act further protects whistleblowing employees from discrimination, both in their current employment and in any future employment.

Discrimination / Human Rights Act: An employee may not be discharged (or discriminated against) in retaliation for making a charge, testifying, or assisting in an investigation, proceeding, or hearing under Maine's Human Rights Act. Nor may an employee be discriminated against for opposing any practice that violates the Act. The Human Rights Act prohibits, among other things, discrimination in employment on the basis of race, color, sex, physical or mental disability, ancestry or national origin, having previously filed a workers' compensation claim, or having previously filed a claim under the Whistleblowers Protection Act (see below). Me. Rev. Stat. Ann. tit. 5, § 4572(1)(E); see also § 4633.

Forestry Employees: A forestry employee may not be discharged (or discriminated against) in retaliation for:

• Participating in a proceeding concerning employment standards in the forestry industry
• Exercising any right afforded concerning employment standards in the forestry industry
• Discussing employment standards in the forestry industry or other lawful matters with another person
• Filing a complaint, lawsuit, or proceeding of any kind.

A forestry worker is a worker who performs reforestation activities, including, but not limited to, pre-commercial thinning, tree planting and brush clearing.

Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint or testifying at a proceeding concerning violations of occupational safety or health standards. Nor may an employee be retaliated against for exercising a right concerning occupational safety and health. Me. Rev. Stat. Ann. tit. 26, § 570.

Public Utility Employees: A public utility or competitive service provider employee may not be discharged (or discriminated against) for testifying before or providing information to a legislative committee or the Public Utilities Commission. Me. Rev. Stat. Ann. tit. 35-A, § 1316.

Smoking: An employee may not be discharged (or discriminated against) in retaliation for assisting in the supervision or enforcement of the Workplace Smoking Act of 1985. The Workplace Smoking Act of 1985 requires employers to establish a written policy concerning smoking, to prohibit smoking except in designated smoking areas, and to provide copies of the smoking policy to employees who make a request. Employers may be fined between $100 - $1,500 for violations. Me. Rev. Stat. Ann. tit. 22, § 1580-A.

Furthermore, an employee may not be discharged, disciplined, or otherwise retaliated against for attempting to enforce laws that prohibit smoking in public places. Me. Rev. Stat. Ann. tit. 22, § 1544.

Workers Compensation: An employee may not be discriminated against in retaliation for filing a workers' compensation claim or testifying in a workers' compensation matter. This protection only applies to the employer against whom the workers' compensation claim is made. An employee may be protected against other employers' retaliatory acts by the Human Rights Act (see "Discrimination" above). Me. Rev. Stat. Ann. tit. 39-A, § 353.

3. How do I file a whistleblower or retaliation claim in Maine?

General Whistleblowing Protection & Discrimination: Under the Whistleblowers' Protection Act and Human Rights Act, an employee may file a complaint before the Maine Human Rights Commission for an administrative hearing. A complaint must be filed within 6 months of the retaliatory action. Alternatively, an employee may file a private lawsuit in an appropriate court.

Complaints may be filed in person or by mailing a completed form to the Commission. You can download the form here. The Commission does not accept complaints by fax or by internet transmission. The Commission's address is:

Maine Human Rights Commission
51 State House Station
Augusta, ME 04333-0051

Phone: (207) 624-6050
Fax: (207) 624-6063
TTY: 1-888-577-6690

If you believe you have a claim, you should contact an attorney in your area.

Forestry Industry: An employee should contact the Maine Department of Labor, Bureau of Labor Standards.

Occupational Safety and Health: An employee may file a complaint with the Director of the Maine Bureau of Labor Standards. The complaint must be filed within 30 days of the retaliatory action. The director will conduct an investigation and, if the director determines that retaliation occurred, may bring an action in an appropriate court. If you believe you have a claim, you should contact the Bureau of Labor Standards at:

Bureau of Labor Standards
45 State House Station
Augusta, ME 04333-0045

Phone: 207-624-6400
Fax: 207-624-6449
TTY: 1-800-794-1110
E-mail: webmaster.bls@maine.gov

Public Utility Employees: A public utility employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 90 days of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.

Smoking: An employee may file a lawsuit in an appropriate court. Under the statute of limitations for personal injuries, a complaint must be filed within six years of the date of injury. If you believe you have a claim, you should contact a lawyer.

Workers' Compensation: An employee may file a petition with the Maine Workers' Compensation Board (WCB). An employee may be awarded reinstatement to the employee's previous job, payment of back wages, reestablishment of employee benefits and reasonable attorney's fees. Petitions must be filed within 2 years of the date of injury or the date of the employer files a first report of injury, whichever is later. If you believe you have a claim, you should contact the WCB.

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