Whistleblowers' Protection

Amends the Whistleblowers' Protection Act by expanding areas of
protected conduct and strengthening the remedies available to
whistleblowers and the penalties for violators. (SD2)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                S.D. 2
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 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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                                     H.B. NO.           H.D. 2
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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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                                     H.B. NO.           H.D. 2
                                                        S.D. 2

 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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                                     H.B. NO.           H.D. 2
                                                        S.D. 2

 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, safety, and welfare.  Additionally, this Act
 6 increases the penalties for violations.
 7      SECTION 2.  Section 378-62, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "[[]378-62[]]  Discharge of, threats to, or discrimination
10 against employee for reporting violations of law.  An employer
11 shall not discharge, threaten, or otherwise discriminate against
12 an employee regarding the employee's compensation, terms,
13 conditions, location, or privileges of employment because:
14      (1)  The employee, or a person acting on behalf of the
15           employee, reports or is about to report to a public
16           body, verbally or in writing, a violation or a
17           suspected violation of a law [or], rule, regulation, or
18           ordinance, adopted pursuant to a law of this State, a
19           political subdivision of this State, or the United
20           States, or information demonstrating immediate and
21           serious danger to public health, safety, and welfare,
22           unless the employee knows that the report is false; or

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                                     H.B. NO.           H.D. 2
                                                        S.D. 2

 1      (2)  An employee is requested by a public body to
 2           participate in an investigation, hearing, or inquiry
 3           held by that public body, or a court action."
 4      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 5 amended by amending subsection (a) to read as follows:
 6      "(a)  A person who alleges a violation of this part may
 7 bring a civil action for appropriate injunctive relief, or actual
 8 damages, or both within [ninety days] two years after the
 9 occurrence of the alleged violation of this part."
10      SECTION 4.  Section 378-64, Hawaii Revised Statutes, is
11 amended to read as follows:
12      "[[]378-64[]]  Remedies ordered by court.  (a)  Upon motion
13 of the complainant, a court may order a stay of the alleged
14 discrimination if the court determines that there are reasonable
15 grounds to believe that a violation of this part has occurred,
16 exists, or is about to take place.  In addition, the complainant
17 shall be entitled to all other civil and criminal remedies
18 available under any other state, federal, or county statutes,
19 ordinances, rules, or regulations; provided that the complainant
20 shall not be entitled to recover duplicative remedies for the
21 same claim.

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                                     H.B. NO.           H.D. 2
                                                        S.D. 2

 1      (b)  A court, in rendering a judgment in an action brought
 2 pursuant to this part, shall order, as the court considers
 3 appropriate, reinstatement of the employee, payment of back
 4 wages, full reinstatement of fringe benefits and seniority
 5 rights, actual damages, or any combination of these remedies.  A
 6 court may also award the complainant all or a portion of the
 7 costs of litigation, including reasonable [attorney's] attorneys'
 8 fees and witness fees, if the court determines that the award is
 9 appropriate."
10      SECTION 5.  Section 378-65, Hawaii Revised Statutes, is
11 amended by amending subsection (a) to read as follows:
12      "(a)  A person who violates this part shall be fined not
13 more than [$500] $10,000 for each violation."
14      SECTION 6.  Section 378-69, Hawaii Revised Statutes, is
15 amended to read as follows:
16      "[[]378-69[]]  Conflict with common law, precedence.  (a)
17 The rights created herein shall not be construed to limit the
18 development of the common law nor to preempt the common law
19 rights and remedies on the subject matter of discharges which are
20 contrary to public policy.  In the event of a conflict between
21 the terms and provisions of this part and any other law on the
22 subject, the more beneficial provisions favoring the employee
23 shall prevail.
24      (b)  Section 386-5 shall not affect subsection (a)."

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                                     H.B. NO.           H.D. 2
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 1      SECTION 7.  This Act does not affect rights and duties that
 2 matured, penalties that were incurred, and proceedings that were
 3 begun, before its effective date.
 4      SECTION 8.  Statutory material to be repealed is bracketed.
 5 New statutory material is underscored.
 6      SECTION 9.  This Act shall take effect upon its approval.