The definition of a whistleblower and the criteria for reliance on associated protections has been the subject of a number of recent cases. In these matters, the reporting method has been the determining factor in whether and what protections are available.
A case heard by the First Circuit U.S. Court of Appeals had provided an important caveat in the comfort of whistleblower protection. In the matter of Winslow v. Aroostook County, the Court found that an employee’s report is not whistleblowing (and thereby not protected) if making the report is part of their job.
Winslow served as executive director of a federally-funded local workforce investment board (LWIB). Aroostook County was the grant sub-recipient for the LWIB and the fiscal agent for the federal grant. The County hired Winslow, paid her salary and supervised her. During a compliance review by federal monitors, the monitors found that absent an express agreement between the LWIB and Aroostook County, it was improper for Winslow to report to the County rather than to the LWIB.
Winslow was instructed by her supervisor to type up and distribute these findings to the Chairman and the two co-Chief Local Elected Officials of the LWIB. When it was eventually decided that a different entity would serve as the new fiscal agent for the LWIB, Winslow engaged in additional communications which others deemed insubordination. Winslow was terminated and not hired by the new entity. Winslow then sought whistleblower protection for having originally reported the findings which eventually led to her unemployment. The Court stated that “Though there may be exceptions, the usual rule in Maine is that a plaintiff’s reports are not whistleblowing if it is part of his or her job responsibilities to make such reports, particularly when instructed to do so by a superior” and that there was no effort to cover up the findings by her employer.
