REPORT TITLE:
Whistleblowers' Protection


DESCRIPTION:
Amends the Whistleblowers' Protection Act by expanding areas of
protected conduct and penalties for violations. (SB235 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 1999                                H.D. 1
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.
 
 8      Unfortunately, many of these alleged violations are not
 
 9 reported due to concerns by employees about potential retaliatory
 
10 discharge, or threats to, or discrimination against them for
 
11 reporting these violations.  Thus, out of fear, violations go
 
12 unreported and uncorrected.
 
13      This problem adversely affects both the well-being and
 
14 productivity of these concerned employees, as well as the
 
15 functioning of the affected agencies or organizations.  It also
 
16 undermines and erodes the public's trust and confidence in
 
17 government, in government employees, and in private sector
 
18 organizations and their employees.
 
19      The Whistleblowers' Protection Act, codified as part V of
 
20 chapter 378, Hawaii Revised Statutes, attempts to provide some
 

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

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

 
 
 
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 1      The purpose of this Act is to strengthen the protection
 
 2 provided by Hawaii's Whistleblowers' Protection Act by providing
 
 3 protection to employees who report violations of law, rule,
 
 4 regulation, ordinance, or immediate and serious danger to the
 
 5 public health and safety, fraud, waste, misuse or
 
 6 misappropriation of public resources, or malfeasance,
 
 7 misfeasance, or neglect of duty by an agency.  Additionally, this
 
 8 Act increases the penalties for violations.
 
 9      SECTION 2.  Section 378-62, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "[[]378-62[]]  Discharge of, threats to, or discrimination
 
12 against employee for reporting violations of law.  (a)  An
 
13 employer  shall not discharge, threaten, or otherwise
 
14 discriminate against an employee regarding the employee's
 
15 compensation, terms, conditions, location, or privileges of
 
16 employment solely because:
 
17      (1)  The employee, or a person acting on behalf of the
 
18           employee, reports or is about to report to a public
 
19           body, verbally or in writing, a violation [or a
 
20           suspected violation] of a law [or], rule, regulation,
 
21           or ordinance, adopted pursuant to a law of this State,
 
22           a political subdivision of this State, or the United
 
23           States, [unless the employee knows that the report is
 

 
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 1           false;] or information demonstrating the probable
 
 2           existence of one or more of the following:
 
 3           (A)  Immediate and serious danger to public health or
 
 4                safety;
 
 5           (B)  Fraud;
 
 6           (C)  Waste, misuse, or misappropriation of public
 
 7                resources; or
 
 8           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
 9                agency;
 
10           where the employee has reasonable cause to believe that
 
11           the report or information is true; or
 
12      (2)  An employee is requested by a public body to
 
13           participate in an investigation, hearing, or inquiry
 
14           held by that public body, or a court action.
 
15      (b)  It shall be an affirmative defense to any action under
 
16 this section that the employer did not, in fact, act unlawfully
 
17 or was not responsible for:
 
18      (1)  Immediate and serious danger to public health or
 
19           safety;
 
20      (2)  Fraud;
 
21      (3)  Waste, misuse, or misappropriation of public resources;
 
22           or
 
23      (4)  Malfeasance, misfeasance, or neglect of duty by an
 
24           agency.
 

 
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 1      (c)  For purposes of this section, "reasonable cause to
 
 2 believe" means a reasonable conclusion based on objective
 
 3 evidence available to the complainant at the time of the
 
 4 disclosure or that would have been available pursuant to the
 
 5 employee's reasonable request or inquiry."
 
 6      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 
 7 amended by amending subsection (a) to read as follows:
 
 8      "(a)  A person who alleges a violation of this part may
 
 9 bring a civil action for appropriate injunctive relief, or actual
 
10 damages, or both, within [ninety] one hundred eighty days after
 
11 the occurrence of the alleged violation of this part.  If
 
12 applicable, the one hundred eighty day period shall commence
 
13 after all grievance procedures under collective bargaining
 
14 agreements, as elected by the person alleging the violation, have
 
15 been exhausted."
 
16      SECTION 4.  Section 378-64, Hawaii Revised Statutes, is
 
17 amended to read as follows:
 
18      "[[]378-64[]]  Remedies ordered by court.  (a)  Upon motion
 
19 of the complainant, a court may order a stay of the alleged
 
20 discrimination if the court determines that there are reasonable
 
21 grounds to believe that a violation of this part has occurred,
 
22 exists, or is about to take place.
 

 
 
 
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 1      (b)  The remedies provided under this part shall not apply
 
 2 where a law, rule, regulation, or ordinance, adopted pursuant to
 
 3 a law of this State, a political subdivision of this State, or
 
 4 the United States, provides a remedy for retaliation, discharge,
 
 5 or discrimination for an employee that either:
 
 6      (1)  Reports a violation of law or information demonstrating
 
 7           the probable existence of one or more of the following:
 
 8           (A)  Immediate and serious danger to public health or
 
 9                safety;
 
10           (B)  Fraud;
 
11           (C)  Waste, misuse, or misappropriation of public
 
12                resources; or
 
13           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
14                agency;
 
15           or
 
16      (2)  Is requested by a public body to participate in an
 
17           investigation, hearing, or inquiry held by that public
 
18           body, or a court action.
 
19      (c)  A court, in rendering a judgment in an action brought
 
20 pursuant to this part, shall order, as the court considers
 
21 appropriate, reinstatement of the employee, payment of back
 
22 wages, full reinstatement of fringe benefits and seniority
 
23 rights, actual damages, compensatory damages, or any combination
 
24 of these remedies.  A court may also award the complainant all or
 

 
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 1 a portion of the costs of litigation, including reasonable
 
 2 [attorney's] attorneys' fees and witness fees, if the court
 
 3 determines that the award is appropriate."
 
 4      SECTION 5.  Section 378-65, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (a) to read as follows:
 
 6      "(a)  A person who violates this part shall be fined not
 
 7 more than [$500 for each violation.] $10,000."
 
 8      SECTION 6.  Section 378-69, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "[[]378-69[]]  Conflict with common law, precedence.  (a)
 
11 The rights created herein shall not be construed to limit the
 
12 development of the common law nor to preempt the common law
 
13 rights and remedies on the subject matter of discharges which are
 
14 contrary to public policy.  In the event of a conflict between
 
15 the terms and provisions of this part and any other law on the
 
16 subject, the more beneficial provisions favoring the employee
 
17 shall prevail.
 
18      (b)  Section 386-5 shall not affect this section."
 
19      SECTION 7.  This Act does not affect rights and duties that
 
20 matured, penalties that were incurred, and proceedings that were
 
21 begun, before its effective date.
 
22      SECTION 8.  Statutory material to be repealed is bracketed.
 
23 New statutory material is underscored.
 
24      SECTION 9.  This Act shall take effect upon its approval.