REPORT TITLE:
Whistleblowers' Protection


DESCRIPTION:
Amends the Whistleblowers' Protection Act by expanding areas of
protected conduct and the types of reportable violations.  Also
strengthens the remedies available to whistleblowers and
increases penalties for violators. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        159
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                   A  BILL  FOR  AN  ACT

RELATING TO WHISTLEBLOWER PROTECTION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 378-61, Hawaii Revised Statutes, is
 
 2 amended by adding a new definition to be appropriately inserted
 
 3 and to read as follows:
 
 4      ""Improper quality of patient care" means any practice,
 
 5 procedure, action, or failure to act of an employer that is a
 
 6 health care provider which a licensed or certified health care
 
 7 professional reasonably believes violates any law, rule,
 
 8 regulation, or declaratory ruling adopted pursuant to law, or the
 
 9 licensed or certified health care professional's code of ethics."
 
10      SECTION 2.  Section 378-62, Hawaii Revised Statutes, is
 
11 amended to read as follows:
 
12      "[[]378-62[]]  Discharge of, threats to, or discrimination
 
13 against employee for reporting violations of law.  (a)  Subject
 
14 to chapter 92F, no employer shall make, adopt, or enforce any
 
15 rule, regulation, or policy to prevent an employee from
 
16 disclosing information to a public body where the employee has
 
17 reasonable cause to believe that the information discloses a
 
18 violation or suspected violation of a law, rule, regulation, or
 
19 ordinance, adopted pursuant to a law of this State, a county, or
 

 
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 1 the United States, or that the information reported demonstrates
 
 2 the probable existence of one or more of the following:
 
 3      (1)  Danger to public health, safety, or welfare;
 
 4      (2)  Improper quality of patient care;
 
 5      (3)  Fraud;
 
 6      (4)  Waste, misuse, or misappropriation of public resources;
 
 7           or
 
 8      (5)  Malfeasance, misfeasance, or neglect of duty by an
 
 9           agency.
 
10      (b)  An employer or agent of the employer shall not
 
11 discharge, threaten, demote, suspend, harass, blacklist, fail to
 
12 promote, transfer, discipline, significantly change duties or
 
13 responsibilities, conduct adverse performance appraisals, or
 
14 [otherwise] in any other manner discriminate against an
 
15 applicant, employee, or former employee regarding the
 
16 applicant's, employee's, or former employee's training, awards,
 
17 compensation, terms, conditions, location, or privileges of
 
18 employment because:
 
19      (1)  The employee, or a person acting on behalf of the
 
20           employee, reports or is about to report in any fashion,
 
21           including verbal, written, broadcast, or otherwise, to
 
22           a public body, [verbally or in writing,] a violation or
 
23           a suspected violation of a law [or], rule, regulation,
 

 
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 1           or ordinance, adopted pursuant to a law of this State,
 
 2           a [political subdivision of this State,] county, or the
 
 3           United States, or if the information reported
 
 4           demonstrates the probable existence of one or more of
 
 5           the following:
 
 6           (A)  Danger to public health, safety, or welfare;
 
 7           (B)  Improper quality of patient care;
 
 8           (C)  Fraud;
 
 9           (D)  Waste, misuse, or misappropriation of public
 
10                resources; or
 
11           (E)  Malfeasance, misfeasance, or neglect of duty by an
 
12                agency;
 
13           unless the employee knows that the report is false;
 
14           [or]
 
15      (2)  An employee is requested by a public body to
 
16           participate in an investigation, hearing, or inquiry
 
17           held by that public body, or a court action[.]; or
 
18      (3)  An employee, or any individual who supports the
 
19           employee, refuses to participate in, or refuses to
 
20           remain silent about, a violation or suspected violation
 
21           of a law, rule, regulation, or ordinance, adopted
 
22           pursuant to a law of this State, a county, or the
 
23           United States, or if the information demonstrates the
 

 
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                                     H.B. NO.           H.D. 2
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 1           probable existence of one or more of the following:
 
 2           (A)  Danger to public health, safety, or welfare;
 
 3           (B)  Improper quality of patient care;
 
 4           (C)  Fraud;
 
 5           (D)  Waste, misuse, or misappropriation of public
 
 6                resources; or
 
 7           (E)  Malfeasance, misfeasance, or neglect of duty by an
 
 8                agency."
 
 9      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 
10 amended as follows:
 
11      1.  By amending subsection (a) to read:
 
12      "(a)  A person who alleges a violation of this part may
 
13 bring a civil action for appropriate injunctive relief, or
 
14 actual, compensatory, and punitive damages, or [both] any
 
15 combination within [ninety days] two years after the occurrence
 
16 of the alleged violation of this part.  If applicable, the two-
 
17 year period shall commence after all grievance procedures under
 
18 collective bargaining agreements, as elected by the person
 
19 alleging the violation, have been exhausted."
 
20      2.  By amending subsection (c) to read:
 
21      "(c)  As used in subsection (a), "damages" means actual,
 
22 compensatory, and punitive damages for injury or loss caused by
 
23 each violation of this part, including reasonable attorney
 

 
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 1 fees[.]; except that the State shall not be liable for punitive
 
 2 damages pursuant to section 662-2."
 
 3      SECTION 4.  Section 378-64, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "[[]378-64[]]  Remedies ordered by court.  (a)  Upon motion
 
 6 of the complainant, the court may order a stay of the alleged
 
 7 discrimination if the court determines that there are reasonable
 
 8 grounds to believe that a violation of this part has occurred,
 
 9 exists, or is about to take place.  In addition, the complainant
 
10 shall be entitled to all other civil and criminal remedies
 
11 available under any other state, federal, or county statutes,
 
12 ordinances, rules, or regulations; provided that the complainant
 
13 shall not be entitled to recover duplicative remedies for the
 
14 same claim.
 
15      (b)  A court, in rendering a judgment in an action brought
 
16 pursuant to this part, shall order, as the court considers
 
17 appropriate, reinstatement of the employee, payment of back
 
18 wages, full reinstatement of fringe benefits and seniority
 
19 rights, actual damages, compensatory damages, and punitive
 
20 damages where otherwise allowed, or any combination of these
 
21 remedies.  A court may also award the complainant all or a
 
22 portion of the costs of litigation, including reasonable
 
23 attorney's fees and witness fees, if the court determines that
 

 
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 1 the award is appropriate."
 
 2      SECTION 5.  Section 378-65, Hawaii Revised Statutes, is
 
 3 amended by amending subsection (a) to read as follows:
 
 4      "(a)  A person who violates this part shall be [fined]
 
 5 subject to a fine of not more than [$500] $10,000 for each
 
 6 violation.  In addition, if the person is employed by the State,
 
 7 the person shall be subject to disciplinary proceedings by the
 
 8 department of human resources development, if the person is
 
 9 subject to chapters 76 and 77; or by the person's appointing
 
10 body, if the person is exempt from chapters 76 and 77; and shall
 
11 be liable for damages in an action brought by the injured party.
 
12 Nothing in this subsection shall bar a person protected under
 
13 this part from pursuing remedies under section 378-63."
 
14      SECTION 6.  This Act does not affect rights and duties that
 
15 matured, penalties that were incurred, and proceedings that were
 
16 begun, before its effective date.
 
17      SECTION 7.  Statutory material to be repealed is bracketed.
 
18 New statutory material is underscored.
 
19      SECTION 8.  This Act shall take effect upon its approval.