Costain v. Sunbury Primary Care

(Maine Supreme Judicial Court)

• Opposing Expansion of Whistleblower Protection in Maine

The case of Costain v. Sunbury Primary Care,  pending before the Maine Supreme Judicial Court, raises the question whether the Maine Whistleblower Protection Act, 26 M.R.S. § 833, extends beyond a current employment relationship to protect an individual who participated in an investigation of a business before she became its employee.  In this case the plaintiff, who alleges that she was fired by the defendant medical group after it was discovered that she had participated in an investigation of a physician in the group years before she was hired, argues even more broadly that the Act should protect an employee from adverse employment action based on any challenge the employee has ever made to the practices of any business that has employees.  If adopted, this interpretation of the Act would prohibit employers from considering any activity of a job applicant or employee challenging their own or any other employer’s business practices, and would protect even the career corporate gadfly from the exercise of normal employer prerogatives under the employment-at-will doctrine.  NELF’s amicus brief in support of the defendant makes both statutory construction and policy arguments for restricting the Act’s scope to protection of employees who challenge the business practices of their then employer.  NELF argues that whistleblower statutes are enacted in recognition of the fact that employees, who are often in the best position to know of unlawful or unsafe activities by their employers, may not come forward with that information due to fear of reprisal.  It is the fear of reprisal by one’s current employer that these laws are designed to alleviate, thereby encouraging employees to report unlawful and unsafe employer practices that might harm the public.  Expansion of whistleblower protection beyond the context of a current employment relationship would not serve this statutory purpose.