Report Title:

Whistleblowers' Protection Act; Expanding Protection

Description:

Expands the protection provided under the Whistleblowers' Protection Act for employees who report situations that demonstrate danger to public health and safety, which they observe during the course of their work. Creates an exception to the two-year statute of limitations period to require commencement for aggrieved employees who are physically or mentally incapacitated to begin upon their return to work. (SD1)

THE SENATE

S.B. NO.

764

TWENTY-SECOND LEGISLATURE, 2003

S.D. 1

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 employees, during the course of their work, may observe violations or suspected violations of the laws of the State of Hawaii, political subdivisions of this State, or the United States, or situations that may pose a danger to public health or safety. Often, however, employees do not report these alleged violations or situations due to concerns about potential retaliatory discharge, threats, or discriminatory action that may result from their reporting these violations or situations. Thus, out of fear, violations of the laws or situations that may pose a danger to public health or safety go unreported and uncorrected. Researchers Myron Pertz Glazer and Penina Migdal Glazer analyzed the relatively recent phenomenon of whistleblowing, or ethical protest, in "The Whistleblowers." They concluded that, although these employees have often "risked their lives, their careers, and their security to 'do the right thing'.... 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." This problem adversely affects the morale and productivity of these concerned employees, as well as the functions and effectiveness 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 (WPA), codified as part V of chapter 378, Hawaii Revised Statutes, attempts to provide some protection to employees who speak out. 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 attorneys' fees and witness fees, is also possible.

The legislature further finds that the law does not protect employees who report to their employer violations or situations that may pose a danger to public health or safety. In addition, although the WPA provides for a two-year period to bring civil action, it fails to account for situations where the aggrieved employee is still physically or mentally incapacitated and unable to work. In these situations, more time is needed for the employee to gather the necessary evidence of retaliation or discrimination and to support their 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 action once the employee is no longer incapacitated. Thus, an exception for physically and mentally incapacitated aggrieved employees is necessary.

The purpose of this Act is to strengthen Hawaii's WPA by extending protection to employees who report violations or information demonstrating danger to public health or safety to their employers or to government agencies and creating an exception to the statute of limitations period.

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[.] or information regarding danger to public health or safety. 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 reports or is about to report to a public body, verbally or in writing[, a violation or a suspected violation of]:

(A) A violation or a suspected violation of:

(i) A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States; or

[(B)](ii) A contract executed by the State, a political subdivision of the State, or the United States[,]; or

(B) Information demonstrating danger to public health and 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."

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

SECTION 5. This Act shall take effect upon its approval.