REPORT TITLE:
Whistleblowers' Protection


DESCRIPTION:
Amends the Whistleblowers' Protection Act by expanding areas of
protected conduct and the types of reportable violations.  Also
strengthens the remedies available to whistleblowers and
increases penalties for violators. (HB159 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        159
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO WHISTLEBLOWER PROTECTION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 378-62, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "[[]§378-62[]]  Discharge of, threats to, or discrimination
 
 4 against employee for reporting violations of law.  (a)  Subject
 
 5 to chapter 92F, no employer shall make, adopt, or enforce any
 
 6 rule, regulation, or policy to prevent an employee from
 
 7 disclosing information to a public body where the employee has
 
 8 reasonable cause to believe that the information discloses a
 
 9 violation or suspected violation of a law, rule, regulation, or
 
10 ordinance, adopted pursuant to a law of this State, a county, or
 
11 the United States, or a code of ethics designed to protect the
 
12 interests of the public, or that the information reported
 
13 demonstrates the probable existence of one or more of the
 
14 following:
 
15      (1)  Danger to public health, safety, or welfare;
 
16      (2)  Fraud;
 
17      (3)  Waste, misuse, or misappropriation of public resources;
 
18           or
 
19      (4)  Malfeasance, misfeasance, or neglect of duty by an
 
20           agency.
 

 
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 1      (b)  An employer or agent of the employer shall not
 
 2 discharge, threaten, demote, suspend, harass, blacklist, fail to
 
 3 promote, transfer, discipline, significantly change duties or
 
 4 responsibilities, conduct adverse performance appraisals, or
 
 5 [otherwise] in any other manner discriminate against an
 
 6 applicant, employee, or former employee regarding the
 
 7 applicant's, employee's, or former employee's training, awards,
 
 8 compensation, terms, conditions, location, or privileges of
 
 9 employment solely because:
 
10      (1)  The employee, or a person acting on behalf of the
 
11           employee, reports or is about to report in any fashion,
 
12           including verbal, written, broadcast, or otherwise, to
 
13           a public body, [verbally or in writing,] a violation or
 
14           a suspected violation of a law [or], rule, regulation,
 
15           or ordinance, adopted pursuant to a law of this State,
 
16           a [political subdivision of this State,] county, or the
 
17           United States, or a code of ethics designed to protect
 
18           the interest of the public, or if the information
 
19           reported demonstrates the probable existence of one or
 
20           more of the following:
 
21           (A)  Danger to public health, safety, or welfare;
 
22           (B)  Fraud;
 
23           (C)  Waste, misuse, or misappropriation of public
 
24                resources; or
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
 2                agency;
 
 3           unless the employee knows that the report is false;
 
 4           [or]
 
 5      (2)  An employee is requested by a public body to
 
 6           participate in an investigation, hearing, or inquiry
 
 7           held by that public body, or a court action[.]; or
 
 8      (3)  An employee, or any individual who supports the
 
 9           employee, refuses to participate in, or refuses to
 
10           remain silent about, a violation or suspected violation
 
11           of a law, rule, regulation, or ordinance, adopted
 
12           pursuant to a law of this State, a county, or the
 
13           United States, or a code of ethics designed to protect
 
14           the interest of the public, or if the information
 
15           demonstrates the probable existence of one or more of
 
16           the following:
 
17           (A)  Danger to public health, safety, or welfare;
 
18           (B)  Fraud;
 
19           (C)  Waste, misuse, or misappropriation of public
 
20                resources; or
 
21           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
22                agency."
 
23      SECTION 2.  Section 378-63, Hawaii Revised Statutes, is
 
24 amended:
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1      1.  By amending subsection (a) to read:
 
 2      "(a)  A person who alleges a violation of this part may
 
 3 bring a civil action for appropriate injunctive relief, or
 
 4 actual, compensatory, and punitive damages, or [both] any
 
 5 combination within [ninety] one hundred eighty days after the
 
 6 occurrence of the alleged violation of this part.  If applicable,
 
 7 the one hundred eighty-day period shall commence after all
 
 8 grievance procedures under collective bargaining agreements, as
 
 9 elected by the person alleging the violation, have been
 
10 exhausted."
 
11      2.  By amending subsection (c) to read:
 
12      "(c)  As used in subsection (a), "damages" means actual,
 
13 compensatory, and punitive damages for injury or loss caused by
 
14 each violation of this part, including reasonable attorney
 
15 fees[.]; except that the State shall not be liable for punitive
 
16 damages pursuant to section 662-2."
 
17      SECTION 3.  Section 378-64, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "[[]§378-64[]]  Remedies ordered by court.  (a)  Upon motion
 
20 of the complainant, the court may order a stay of the alleged
 
21 discrimination if the court determines that there are reasonable
 
22 grounds to believe that a violation of this part has occurred,
 
23 exists, or is about to take place.  In addition, the complainant
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 shall be entitled to all other civil and criminal remedies
 
 2 available under any other state, federal, or county statutes,
 
 3 ordinances, rules, or regulations; provided that the complainant
 
 4 shall not be entitled to recover duplicative remedies for the
 
 5 same claim.
 
 6      (b)  A court, in rendering a judgment in an action brought
 
 7 pursuant to this part, shall order, as the court considers
 
 8 appropriate, reinstatement of the employee, payment of back
 
 9 wages, full reinstatement of fringe benefits and seniority
 
10 rights, actual damages, compensatory damages, and punitive
 
11 damages where otherwise allowed, or any combination of these
 
12 remedies.  A court may also award the complainant all or a
 
13 portion of the costs of litigation, including reasonable
 
14 attorney's fees and witness fees, if the court determines that
 
15 the award is appropriate."
 
16      SECTION 4.  Section 378-65, Hawaii Revised Statutes, is
 
17 amended by amending subsection (a) to read as follows:
 
18      "(a)  A person who violates this part for each violation
 
19 shall be [fined] subject to a fine of not more than [$500 for
 
20 each violation.] $10,000.  In addition, if the person is employed
 
21 by the State, the person shall be subject to disciplinary
 
22 proceedings by the department of human resources development, if
 
23 the person is subject to chapters 76 and 77; or by the person's
 

 
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                                     H.B. NO.           H.D. 1
                                                        
                                                        

 
 1 appointing body, if the person is exempt from chapters 76 and 77;
 
 2 and shall be liable for damages in an action brought by the
 
 3 injured party.  Nothing in this subsection shall bar a person
 
 4 protected under this part from pursuing remedies under section
 
 5 378-63."
 
 6      SECTION 5.  This Act does not affect rights and duties that
 
 7 matured, penalties that were incurred, and proceedings that were
 
 8 begun, before its effective date.
 
 9      SECTION 6.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 7.  This Act shall take effect upon its approval.