Whistleblowers' Protection; Statute of Limitations; Violations
Increases the penalties for each violation of Whistleblowers' Protection Act from $500 to $10,000; increases the time in which an action may be brought by changing the statute of limitations from 90 days to 2 years; provides that civil fine for violation shall be paid to employee.
HOUSE OF REPRESENTATIVES
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII
A BILL FOR AN ACT
relating to the whistleblowers' protection act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that, on occasion, employees find it necessary to report violations or suspected violations of a law, rule, regulation, or ordinance adopted by the State of Hawaii, a political subdivision of this State, or the United States, or situations which demonstrate danger to public health, safety, and welfare, which they observe during the course of their work. Unfortunately, employees do not report many of these alleged violations or situations due to concerns about potential retaliatory discharge, or threats to, or discrimination against them for reporting these violations or situations. Thus, out of fear, violations or situations demonstrating danger to public health, safety, and welfare, go unreported and uncorrected. This problem adversely affects both the well-being and productivity of these concerned employees, as well as the functions of the affected agencies or organizations. It also undermines and erodes the public's trust and confidence in government and private sector organizations and their employees.
The Whistleblowers' Protection Act, codified as part V of chapter 378, Hawaii Revised Statutes, attempts to provide some protection to employees who speak out. The Act provides for the ability to bring civil action for appropriate injunctive relief, or actual damages, or both, within ninety days after the alleged violation of the Act. The Act also provides for potential reinstatement of the employee, payment of back wages, full reinstatement of fringe benefits, actual damages, or any combination of these remedies. Recovery of all or a portion of the costs of litigation, including reasonable attorney's fees and witness fees, is also possible. Other states, such as California, and the federal government have adopted similar legislation.
In addition, the Government Accountability Project, an organization which provides assistance to whistleblowers, has developed a Model State Whistleblower Protection Act. A reference entitled "The Whistleblowers," by Myron Pertz Glazer and Penina Migdal Glazer, researches and analyzes the relatively recent phenomenon of whistleblowing or ethical protest. Glazer and Glazer have concluded that these employees have often "risked their lives, their careers, and their security to 'do the right thing'". They found that "many government and private sector officials have implemented a consistent pattern of harsh reprisals - from blacklisting, dismissal, or transfer, to personal harassment - in an effort to define the dissident employees as the source of the problem, to undermine their credibility and effectiveness as potential witnesses."
Although Hawaii's Whistleblowers' Protection Act does provide some protection from and potential compensation for employer retaliation, penalties for violations of the Act are relatively minor (a fine of not more than $500 for each violation) and does not provide protection to employees who report to their employers violations or situations demonstrating danger to public health, safety, and welfare. Hawaii's Whistleblowers' Protection Act provides for a ninety-day period to bring civil action. Such a short statute of limitations may not be adequate in some cases. Often, more time is needed for the whistleblower to gather the necessary evidence of retaliation and to support the whistleblowers' original allegations regarding illegal activities; to discuss the situation with legal counsel and union representatives; and to evaluate the potential personal and career ramifications of pursuing further actions. Thus, a longer period of time is warranted.
The purpose of this Act is to strengthen the protection provided by Hawaii's Whistleblowers' Protection Act by providing that in addition to protection to employees who report to governmental entities or their employers violations of law, rule, regulation, or ordinance, protection is extended to such employees who report information demonstrating danger to the public health, safety, and welfare. This Act also increases the penalties for violations and increases the statute of limitations.
SECTION 2. Section 378-62, Hawaii Revised Statutes, is amended to read as follows:
§378-62[ ]] Discharge of, threats to, or discrimination against employee for reporting violations of law. An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:
(1) The employee, or a person acting on behalf of the employee, reports or is about to report to the employer or a public body, verbally or in writing, a violation or a suspected violation of a law [
or rule], rule, regulation, or ordinance adopted pursuant to a law of this State, a political subdivision of this State, or the United States, or information demonstrating danger to public health, safety, and welfare, unless the employee knows that the report is false; or
(2) An employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action."
SECTION 3. Section 378-63, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) A person who alleges a violation of this part may bring a civil action for appropriate injunctive relief, or actual damages, or both within [
ninety days] two years after the occurrence of the alleged violation of this part."
SECTION 4. Section 378-65, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) A person who violates this part shall be fined not more than [
$500] $10,000 for each violation.
(b) A civil fine which is ordered pursuant to this part [
shall be deposited with the director of finance to the credit of the general fund of the State.] shall be paid to the employee."
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.