Report Title:

Whistleblowers' Protection Act; Strengthening and Expanding Protection

Description:

Amends the whistleblowers' protection act by expanding protected activities, extending the limitations period, and increasing fines.

THE SENATE

S.B. NO.

2037

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to Employment Practices.

 

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 of the State of Hawaii, political subdivisions 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. Often, however, employees do not report 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.

Additionally, employees have been suspended, discharged, or discriminated against because the employee filed a worker's compensation claim, filed a petition in bankruptcy or because the employer was summoned as a garnishee and had to make payroll deductions to the employee's creditor. The present remedies found in section 378-35, Hawaii Revised Statutes, are inadequate because of the short thirty-day period in which to file a complaint and the lack of full redress if a violation is established. Moreover, employees in this situation have difficulty finding legal representation because there is no provision awarding fees if the employee's claim is established.

The Whistleblowers' Protection Act, codified as part V of chapter 378, Hawaii Revised Statutes, attempts to provide some protection to employees who speak out and should also cover unlawful suspension, discharges, or discriminatory acts presently found in part III of chapter 378, Hawaii Revised Statutes. The law provides for the ability to bring civil action for appropriate injunctive relief, 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. California and the congress have adopted similar legislation.

In addition, the Government Accountability Project, an organization which provides assistance to whistleblowers, had 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 law are relatively minor (a fine of not more than $500 for each violation) and do 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 law 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 or discrimination and to support the whistleblower's 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 time period is warranted.

The purpose of this Act is to strengthen the protection provided by Hawaii's Whistleblowers' Protection Act by providing protection to employees who report to government entities or their employers violations of law or who report information demonstrating danger to the public health, safety, and welfare, and to employees who have been suspended, discharged, or discriminated against because they suffered a work injury, filed a petition in bankruptcy, or because their employer was summoned as a garnishee. Consequently, this Act increases the penalties for violations, increases the duration of the statute of limitations, and provides remedies to employees who were not adequately protected under part III of chapter 378, Hawaii Revised Statutes.

SECTION 2. Chapter 378 is amended by amending the title of part V to read as follows:

"[[]PART V.[]] WHISTLEBLOWERS' PROTECTION

AND UNLAWFUL SUSPENSION, DISCHARGE, OR DISCRIMINATION ACT"

SECTION 3. 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 to the employer, or reports or is about to report to a public body, verbally or in writing, a violation or a suspected violation of a law [or], rule, 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 or safety, 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[.];

(3) The employer was summoned as a garnishee in a case where the employee is the debtor or because the employee has filed a petition in proceedings for a wage earner plan under chapter XIII of the federal Bankruptcy Act; or

(4) The employee has suffered a work injury which arose out of and in the course of the employee's employment with the employer and which is compensable under chapter 386 unless the employee is no longer capable of performing the employee's work as a result of the work injury and the employer has no other available work which the employee is capable of performing. Any employee who is discharged because of the work injury shall be given first preference of reemployment by the employer in any position which the employee is capable of performing and which becomes available after the discharge and during the period thereafter until the employee secures new employment. This paragraph shall not apply to any employer in whose employment there are less than three employees at the time of the work injury or who is a party to a collective bargaining agreement which prevents the continued employment or reemployment of the injured employee."

SECTION 4. 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[.], except that a complaint for an alleged act of unlawful suspension, discharge, or discrimination occurring while the aggrieved employee is still physically or mentally incapacitated and unable to work may be filed before the expiration of two years after the date the aggrieved employee is able to return to work."

SECTION 5. Section 378-65, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A person who violates this part shall be fined not more than [$500] $10,000 for each violation."

SECTION 6. Part III, Chapter 378, Hawaii Revised Statutes, is repealed.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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