REPORT TITLE:
Whistleblowers' Protection


DESCRIPTION:
Amends the Whistleblowers' Protection Act by expanding areas of
protected conduct and the types of reportable violations.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            761         
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO EMPLOYEE PROTECTION UNDER THE WHISTLEBLOWER LAW.
 


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

 1      SECTION 1.  The legislature finds that, on occasion,
 
 2 employees find it necessary to report violations or suspected
 
 3 violations of a law, rule, regulation, or ordinance adopted by
 
 4 the State of Hawaii, a political subdivision of this State, or
 
 5 the United States, or a code of ethics designed to protect the
 
 6 interest of the public or an employer, which they observe during
 
 7 the course of their work.  Absent threats of retaliation by the
 
 8 employer, reports of violations serve the public interest by
 
 9 increasing government efficiency and productivity as well as
 
10 regain the public trust and confidence in the government.
 
11      Unfortunately, many of these alleged violations are not
 
12 reported due to concerns by employees about potential retaliatory
 
13 discharge, or threats to, or discrimination against them for
 
14 reporting these violations.  Thus, out of fear, violations go
 
15 unreported and uncorrected.
 
16      This problem adversely affects both the well-being and
 
17 productivity of these concerned employees, as well as the
 
18 functioning of the affected agencies or organizations.  It also
 
19 undermines and erodes the public's trust and confidence in
 

 
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 1 government, in government employees, and in private sector
 
 2 organizations and their employees.
 
 3      The Whistleblowers' Protection Act, codified as part V of
 
 4 chapter 378, Hawaii Revised Statutes, attempts to provide some
 
 5 protection to employees who speak out.  That Act provides for the
 
 6 ability to bring a civil action for appropriate injunctive
 
 7 relief, or actual damages, or both, within ninety days after the
 
 8 alleged violation of that Act.  That Act also provides for
 
 9 potential reinstatement of the employee, payment of back wages,
 
10 full reinstatement of fringe benefits, actual damages, or any
 
11 combination of these remedies.  Recovery of all or a portion of
 
12 the costs of litigation, including reasonable attorney's fees and
 
13 witness fees, is also possible.
 
14      Other states, such as California, and the federal
 
15 government, have adopted similar legislation.  In addition, the
 
16 Government Accountability Project, an organization which provides
 
17 assistance to whistleblowers, has developed a Model State
 
18 Whistleblower Protection Act.
 
19      A reference entitled "The Whistleblowers", by Myron Peretz
 
20 Glazer and Penina Migdal Glazer, researches and analyzes the
 
21 relatively recent phenomenon of whistleblowing or ethical
 
22 protest.  Glazer and Glazer have concluded that these employees
 
23 have often "risked their lives, their careers, and their security
 

 
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 1 to "do the right thing"".  They found that "many government and
 
 2 private sector officials have implemented a consistent pattern of
 
 3 harsh reprisals - from blacklisting, dismissal, or transfer, to
 
 4 personal harassment - in an effort to define the dissident
 
 5 employees as the source of the problem, to undermine their
 
 6 creditability and effectiveness as potential witnesses".
 
 7      Although Hawaii's Whistleblowers' Protection Act does
 
 8 provide some protection from, and potential compensation for,
 
 9 employer retaliation for ethical protest, penalties for
 
10 violations of that Act are relatively minor and insignificant (a
 
11 fine of not more than $500 for each violation).  In contrast to
 
12 the relatively much greater penalties and losses incurred by the
 
13 average whistleblower for attempting to do the right thing, the
 
14 penalties for those who create these hardships are grossly
 
15 disproportionate, totally inadequate, and hardly a deterrent to
 
16 future retaliation.
 
17      Hawaii's Whistleblowers' Protection Act provides only a
 
18 ninety-day period to bring civil action.  Such a short statute of
 
19 limitations may not be adequate in some cases.  Often, more time
 
20 is needed for the whistleblower to gather the necessary evidence
 
21 of retaliation and to support the whistleblower's original
 
22 allegations regarding illegal activities; to discuss the
 
23 situation with legal counsel, union representatives, or public
 

 
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 1 support and interest groups; and to evaluate the potential
 
 2 personal and career ramifications of pursuing further actions.
 
 3 Thus, a longer period of time is warranted.
 
 4      The purpose of this Act is to strengthen the protection
 
 5 provided by Hawaii's Whistleblowers' Protection Act by providing
 
 6 protection to employees who report violations of law, rule,
 
 7 regulation, or ordinance; violations of a code of ethics; or any
 
 8 of the following:
 
 9      (1)  Immediate and serious danger to the public health,
 
10           safety, and welfare;
 
11      (2)  Fraud;
 
12      (3)  Waste, misuse, and misappropriation of public
 
13           resources; or
 
14      (4)  Malfeasance, misfeasance, or neglect of duty by an
 
15           agency.
 
16      Additionally, this Act also strengthens the remedies
 
17 available to whistleblowers and increases the penalties for
 
18 violations.  Accordingly, this Act will serve to regain the
 
19 public's trust and confidence in government through increased
 
20 government efficiency and productivity.
 
21      SECTION 2.  Section 378-62, Hawaii Revised Statutes, is
 
22 amended to read as follows:
 
23      "[[]378-62[]]  Discharge of, threats to, or discrimination
 

 


 

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 1 against employee for reporting violations of law.  (a)  Subject
 
 2 to chapter 92F, no employer shall make, adopt, or enforce any
 
 3 rule, regulation, contract, or policy to prevent an employee from
 
 4 disclosing information to a public body where the employee has
 
 5 reasonable cause to believe the information discloses a violation
 
 6 or suspected violation of a law, rule, regulation, or ordinance,
 
 7 adopted pursuant to a law of this State, a political subdivision
 
 8 of this State, or the United States, or a code of ethics designed
 
 9 to protect the interests of the public, or the information
 
10 demonstrates one or more of the following:
 
11      (1)  Immediate and serious danger to public health, safety,
 
12           and welfare;
 
13      (2)  Fraud;
 
14      (3)  Waste, misuse, and misappropriation of public
 
15           resources; or
 
16      (4)  Malfeasance, misfeasance, or neglect of duty by an
 
17           agency.
 
18 For purposes of this subsection, "reasonable cause to believe"
 
19 means a person believes that a given fact or combination of facts
 
20 exists, and that circumstances which the person knows, or should
 
21 know, are such as to cause a reasonable person to believe.
 
22      (b)  An employer or agent of the employer shall not
 
23 discharge, threaten, demote, suspend, harass, blacklist, fail to
 

 
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 1 promote, transfer, or discipline, significantly change duties or
 
 2 responsibilities, conduct adverse performance appraisals, or
 
 3 [otherwise] in any other manner discriminate against an
 
 4 applicant, employee, or former employee regarding the
 
 5 applicant's, employee's, or former employee's training, awards,
 
 6 compensation, terms, conditions, location, or privileges of
 
 7 employment solely because:
 
 8      (1)  The applicant, employee, or former employee, or a
 
 9           person acting on behalf of the applicant, employee, or
 
10           former employee, reports or is about to report in any
 
11           fashion, including verbal, written, broadcast, or
 
12           otherwise, to a public body, [verbally or in writing,]
 
13           a violation or a suspected violation of a law [or],
 
14           rule, regulation, or ordinance, adopted pursuant to a
 
15           law of this State, a political subdivision of this
 
16           State, or the United States, or a code of ethics
 
17           designed to protect the interest of the public, or the
 
18           information demonstrates one or more of the following:
 
19           (A)  Immediate and serious danger to public health,
 
20                safety, and welfare;
 
21           (B)  Fraud;
 
22           (C)  Waste, misuse, and misappropriation of public
 
23                resources; or
 

 
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 1           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
 2                agency;
 
 3           unless the applicant, employee, or former employee,
 
 4           knows that the report is false; [or]
 
 5      (2)  An applicant, employee, or former employee is requested
 
 6           by a public body to participate in an investigation,
 
 7           hearing, or inquiry held by that public body, or a
 
 8           court action[.]; or
 
 9      (3)  An applicant, employee, or former employee, or any
 
10           individual who supports the applicant, employee, or
 
11           former employee, refuses to participate in or remains
 
12           silent about a violation or suspected violation of a
 
13           law, rule, regulation, or ordinance, adopted pursuant
 
14           to a law of this State, a political subdivision of this
 
15           State, or the United States, or a code of ethics
 
16           designed to protect the interest of the public, or
 
17           information demonstrating one or more of the following:
 
18           (A)  Immediate and serious danger to public health,
 
19                safety, and welfare;
 
20           (B)  Fraud;
 
21           (C)  Waste, misuse, and misappropriation of public
 
22                resources; or
 
23           (D)  Malfeasance, misfeasance, or neglect of duty by an
 

 
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 1                agency.
 
 2      (c)  It shall be an affirmative defense to any action under
 
 3 this section that the employer did not, in fact, act or cause
 
 4 others to act, unethically pursuant to a governing code of ethics
 
 5 or unlawfully."
 
 6      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 
 7 amended as follows:
 
 8      1.  By amending subsection (a) to read:
 
 9      "(a)  A person who alleges a violation of this part may
 
10 bring a civil action for appropriate injunctive relief, or
 
11 actual, compensatory, and punitive damages, or [both] any
 
12 combination within [ninety] one hundred eighty days after the
 
13 occurrence of the alleged violation of this part.  If applicable,
 
14 the one hundred eighty-day period shall commence after all
 
15 grievance procedures under collective bargaining agreements, as
 
16 elected by the person alleging the violation, have been
 
17 exhausted."
 
18      2.  By amending subsection (c) to read:
 
19      "(c)  As used in subsection (a), "damages" means actual,
 
20 compensatory, and punitive damages for injury or loss caused by
 
21 each violation of this part, including reasonable [attorney]
 
22 attorneys' fees[.]; except that the State shall not be liable for
 
23 punitive damages pursuant to section 662-2."
 

 
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 1      SECTION 4.  Section 378-64, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "[[]378-64[]]  Remedies ordered by court.  (a)  Upon motion
 
 4 of the complainant, a court may order a stay of the alleged
 
 5 discrimination if the court determines that there are reasonable
 
 6 grounds to believe that a violation of this part has occurred,
 
 7 exists, or is about to take place.  In addition, the complainant
 
 8 shall be entitled to all other civil and criminal remedies
 
 9 available under any other state, federal, or county statutes,
 
10 ordinances, rules, or regulations; provided that the complainant
 
11 shall not be entitled to recover duplicative remedies for the
 
12 same claim.
 
13      (b)  A court, in rendering a judgment in an action brought
 
14 pursuant to this part, shall order, as the court considers
 
15 appropriate, reinstatement of the employee, payment of back
 
16 wages, full reinstatement of fringe benefits and seniority
 
17 rights, actual damages, compensatory damages, and punitive
 
18 damages where otherwise allowed, or any combination of these
 
19 remedies.  A court may also award the complainant all or a
 
20 portion of the costs of litigation, including reasonable
 
21 [attorney's] attorneys' fees and witness fees, if the court
 
22 determines that the award is appropriate."
 
23      SECTION 5.  Section 378-65, Hawaii Revised Statutes, is
 

 
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 1 amended by amending subsection (a) to read as follows:
 
 2      "(a)  A person who violates this part shall be fined not
 
 3 more than [$500 for each violation.] $10,000.  In addition, if
 
 4 the person is employed by the State, the person shall be subject
 
 5 to disciplinary proceedings by the department of human resources
 
 6 development, if the person is subject to chapters 76 and 77; or
 
 7 by the person's appointing body, if the person is exempt from
 
 8 chapters 76 and 77; and shall be liable for damages in an action
 
 9 brought by the injured party.  Nothing in this subsection shall
 
10 bar a person protected under this part from pursuing remedies
 
11 under section 378-63."
 
12      SECTION 6.  Section 378-69, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "[[]378-69[]]  Conflict with common law, precedence.  (a)
 
15 The rights created herein shall not be construed to limit the
 
16 development of the common law nor to preempt the common law
 
17 rights and remedies on the subject matter of discharges which are
 
18 contrary to public policy.  In the event of a conflict between
 
19 the terms and provisions of this part and any other law on the
 
20 subject, the more beneficial provisions favoring the employee
 
21 shall prevail.
 
22      (b)  Section 386-5 shall not affect subsection (a)."
 
23      SECTION 7.  This Act does not affect rights and duties that
 

 
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 1 matured, penalties that were incurred, and proceedings that were
 
 2 begun, before its effective date.
 
 3      SECTION 8.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 9.  This Act shall take effect upon its approval.
 
 6 
 
 7                           INTRODUCED BY:  _______________________