Whistleblower and retaliation claims have been on a steady rise in Maine for the last 10 years. In 2016, they spiked. Some of this is just employees checking extra boxes on the charge form. But when whistleblowing claims double from 268 to 532 in one year (and retaliation claims more than double from 228 to 538 at the same time), employers should be worried. If your industry is particularly safety sensitive, you are particularly vulnerable, but virtually all employers are at greater risk of being hit with whistleblower claims. All a disaffected employee has to do is say he or she complained about “safety,” and there’s a good chance you’ll have a jury trial on your calendar.
Why the Spike?
While it is impossible to say with certainty why this sudden explosion of claims has occurred, we have a theory. In November of 2015, the Law Court issued a decision in Brady v. Cumberland County, 2015 ME 143. The Court reversed the lower court’s grant of summary judgment to the employer, and in so doing it changed the way it analyzes whistleblower claims at the summary judgment stage. The change has, at least arguably, made it easier for plaintiffs to defeat employers’ summary judgment motions and get their cases before a jury. So for all of 2016, the year of the whistleblowing crescendo, this lower burden has been in effect. Why wouldn’t we expect to see the market react to a new rule that gives plaintiffs’ employment counsel more leverage?
Whatever the reason for this new abundance of whistleblowing claims, wise employers will take note and start adopting stronger policies and practices that either prevent, or at least better protect against, these claims. On September 14 Jim Erwin and Lily Rao kicked off the start of the program season by explaining how we got here and, more importantly, how you can recognize your whistleblower risks and take crucial steps to minimize them.