Maine Law Court Weighs In Again on Whistleblower Claims

Thursday, May 14, 2015

The Maine Supreme Judicial Court, acting as the Law Court, recently issued a decision reiterating the scope of protected activity under the Maine Whistleblowers’ Protection Act.  The decision is a win for employers and clarifies that an employee’s subjective belief that there has been a violation of law is not enough to bring a report about the alleged violation within the protections of the WPA – the employee’s belief must also be objectively reasonable.

The issue in Galouch v. Department of Professional and Financial Regulation was whether reports made by a Maine Bureau of Insurance employee – Patricia Galouch – qualified as protected activity where the reports related to concerns Ms. Galouch had about a court reporter.  The court reporter was under contract with the Bureau to provide certain services, and Ms. Galouch believed the reporter had breached the terms of her service agreement.  Ms. Galouch believed these breaches violated certain rules governing the Bureau’s procurement of services, and she reported her concerns to her supervisor.  The supervisor directed Ms. Galouch to refer contract issues to the Bureau’s contract administrator and instructed her to not address the contract issues herself, as they fell outside her job responsibilities.  Ms. Galouch, however, continued to communicate with the court reporter directly. Soon thereafter, the court reporter terminated her contract with the Bureau and explained she could no longer tolerate Ms. Galouch’s behavior.  The Bureau placed Ms. Galouch on administrative leave while it investigated allegations that she had exceeded the authority of her position.  As a result of the investigation, which was subsequently expanded to include other performance issues, the Bureau terminated Ms. Galouch’s employment.

The key issue for the Law Court was whether Ms. Galouch’s report concerning the court reporter’s contract qualified as protected activity under the WPA.  More specifically, the issue was whether Ms. Galouch had “reasonable cause” to believe that the court reporter’s conduct was unlawful.  The Law Court found that even if Ms. Galouch subjectively believed the reporter’s conduct was unlawful, there was no evidence demonstrating that a reasonable person would have believed so.  While acknowledging that the WPA “does not require an employee be able to cite to a particular statute or rule that may have been violated,” the Law Court held that Ms. Galouch’s “subjective belief alone is insufficient to meet the WPA’s ‘reasonable cause’ requirement.”

Right to Work - Chapter 4

Thursday, May 7, 2015

Yesterday, May 6, 2015, the Joint Standing Committee on Labor, Commerce, Research, & Economic Development held work sessions on a number of bills pertaining to “Right to Work” policy. The Maine AFL-CIO held a morning rally in the cafeteria of the Burton M. Cross Building to coincide with  the work sessions. Roughly 100 members, activists, and officers gathered to hear speeches from trade union leaders and pro-union legislative leaders, namely Sen. John Patrick (D-Oxford). Before the 10:00 am legislative session began, AFL-CIO organizers coached attendees on how to speak with their representatives and senators about the union position on the proposed legislation. This did not only include members of the LCRED committee, but also the overall membership of both legislative bodies in anticipation of divided committee reports that would send the bills to the House and Senate.

The committee sent out three divided reports. Party line votes were taken on LDs 404, 489, and 1010 with un-enrolled committee member Rep. James Campbell (U-Newfield) siding with Democrats in opposition. Democrats have a majority on the committee, but divided reports mean the Republican controlled Senate will be able to move the Ought to Pass Minority Report of each bill in that chamber. However, House Democrats will likely kill the bills in the legislature’s lower body where no one in their caucus is expected to break ranks.

If supporters were able to get the minority reports through the legislature, however unlikely, Governor Paul LePage has made clear his desire to sign such policy into law.

The committee did vote outright to kill one of the major bills in question: LD 1353, sponsored by Sen. Andre Cushing (R-Hampden). The bill received a unanimous “Ought Not to Pass” report.

Additionally, Rep. Karleton Ward’s (R-Dedham) bill, LD 1319, which deals with employees receiving compensation on days they’re involved in union activity, was postponed and will be worked today, May 7, 2015, at a 2:00 pm session of the committee.

Right to Work - Chapter 3

Wednesday, May 6, 2015

The Maine Legislature’s Joint Standing Committee on Labor, Commerce, Research & Economic Development heard testimony Monday on six proposed bills that would seek to alter the relationship unions have with employees and effectively make Maine a “Right to Work”, or “pseudo-Right to Work” state. The work session for these bills will be today, May 6 at 2:00 pm.

Rep. Larry Lockman (R-Amherst) is sponsoring  LDs 404 and 489 and Rep. Joel Stetkis (R-Canaan) is sponsoring  LD 1351 – all bills dealing with public employers. These three pieces of legislation imply, in various ways, that the employees of public institutions not be required to join a union as a condition of employment.

LD 1319 is sponsored by Rep. Karleton Ward (R-Dedham). His bill would prevent public employees from collecting compensation on days when they participated in activities involving their business agents.
Sen. Andre Cushing (R-Hampden) is also proposing a pair of bills that were heard at Monday’s public hearing. The first, LD 1010, would exclude negotiations around the use of private contractors from collective bargaining proceedings with public entities. However, the marquis bill in question may be Sen. Cushing’s LD 1353 which is the only one of these six proposals to directly address private employer unionization and stands as a fairly straightforward “Right to Work”  bill. The legislation would, of course, exclude membership in a union as a condition of employment with private entities.

The hearing was heavily attended, lasting through the morning and into the afternoon. However, it did not draw excessively large crowds. Estimates placed the opposition, mainly composed of union members and officers, as outnumbering proponents of the six bills roughly “3 or 4 to 1”. The Maine AFL-CIO is expected to make a bigger demonstration of opposition on the morning of Wednesday, May 6 which will occur before these bills’ afternoon work sessions.