When is a Report not a Whistle?




When is a Report not a Whistle? Federal judge finds supervisor’s report of subordinate’s harassment falls within “job duties exception” to both MWPA and MHRA.


The Rule: The Job Duties Exception – Good News, with Two Caveats



In 2013, the First Circuit recognized a “job duties” exception to the Maine Whistleblowers Protection Act (MWPA) in its Winslow decision, holding that an employee’s reports “are not whistleblowing if it is part of his or her job responsibilities to make such report….”  Several federal court decisions have relied on Winslow in granting summary judgment to employers. First caveat: the MWPA does not expressly contain the exception, and the Maine Law Court, which has the last word on Maine law, has not yet ruled on its viability.



The Boulevard Motel Decision – Employer Diligence Rewarded



In Parker v. Boulevard Motel Corp., an assistant housekeeping supervisor claimed she was fired in retaliation for reporting the harassment of a subordinate housekeeper.  U.S. District Court Judge Woodcook reluctantly granted summary judgment to the employer, finding that because (among other factors) the employer had trained the plaintiff on the specific duties of a supervisor with respect to reporting harassment, and the plaintiff agreed it was her duty to do so, the report was not protected by the MWPA or the anti-retaliation provision of the MHRA.  The decision is still subject to appeal, along with a companion case, Pippin v. Boulevard Motel Corp.






Revisit Policies & Training



The employer was able to prevail because it had created a written policy and training materials on the supervisor’s duties in harassment cases, which plaintiff was required to read and follow.  Be sure your policies are clear and specific about who has what duties, and make sure to train your supervisors accordingly.



Don’t Overreach



Second caveat: Judge Woodcock expressed significant concern that the exception swallows the rule protecting whistleblowers, and invited the First Circuit and Law Court to reconsider it.  Employers should not overreach in imposing reporting obligations on employees.  We can help employers make legitimate use of the exception without going too far.