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 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        159
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
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 that the information reported demonstrates
 
12 the probable existence of one or more of the following:
 
13      (1)  Danger to public health, safety, or welfare;
 
14      (2)  Fraud;
 
15      (3)  Waste, misuse, or misappropriation of public resources;
 
16           or
 
17      (4)  Malfeasance, misfeasance, or neglect of duty by an
 
18           agency.
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 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 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 if the information reported
 
18           demonstrates the probable existence of one or more of
 
19           the following:
 
20           (A)  Danger to public health, safety, or welfare;
 
21           (B)  Fraud;
 

 
 
 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           (C)  Waste, misuse, or misappropriation of public
 
 2                resources; or
 
 3           (D)  Malfeasance, misfeasance, or neglect of duty by an
 
 4                agency;
 
 5           unless the employee knows that the report is false;
 
 6           [or]
 
 7      (2)  An employee is requested by a public body to
 
 8           participate in an investigation, hearing, or inquiry
 
 9           held by that public body, or a court action[.]; or
 
10      (3)  An employee, or any individual who supports the
 
11           employee, refuses to participate in, or refuses to
 
12           remain silent about, a violation or suspected violation
 
13           of a law, rule, regulation, or ordinance, adopted
 
14           pursuant to a law of this State, a county, or the
 
15           United States, or if the information demonstrates the
 
16           probable existence of one or more of 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."
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      SECTION 2.  Section 378-63, Hawaii Revised Statutes, is
 
 2 amended as follows:
 
 3      1.  By amending subsection (a) to read:
 
 4      "(a)  A person who alleges a violation of this part may
 
 5 bring a civil action for appropriate injunctive relief, or
 
 6 actual, compensatory, and punitive damages, or [both] any
 
 7 combination within [ninety] one hundred eighty days after the
 
 8 occurrence of the alleged violation of this part.  If applicable,
 
 9 the one hundred eighty-day period shall commence after all
 
10 grievance procedures under collective bargaining agreements, as
 
11 elected by the person alleging the violation, have been
 
12 exhausted."
 
13      2.  By amending subsection (c) to read:
 
14      "(c)  As used in subsection (a), "damages" means actual,
 
15 compensatory, and punitive damages for injury or loss caused by
 
16 each violation of this part, including reasonable attorney
 
17 fees[.]; except that the State shall not be liable for punitive
 
18 damages pursuant to section 662-2."
 
19      SECTION 3.  Section 378-64, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "[[]§378-64[]]  Remedies ordered by court.  (a)  Upon motion
 
22 of the complainant, the court may order a stay of the alleged
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

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