REPORT TITLE: 
Whistleblower protection


DESCRIPTION:
Amends current law to increase statute of limitations or
injunctive relief.


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                     A BILL FOR AN ACT

RELATING TO THE HAWAII WHISTLEBLOWER PROTECTION ACT.



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

 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, a political subdivision of this State, or the United
 
 5 States, or situations that demonstrate danger to public health,
 
 6 safety, and welfare, which they observe during the course of
 
 7 their work.  Unfortunately, employees do not report many of these
 
 8 alleged violations or situations due to concerns about potential
 
 9 retaliatory discharge, or threats to, or discrimination against
 
10 them for reporting these violations or situations.  Thus, out of
 
11 fear, violations or situations demonstrating danger to public
 
12 health, safety, and welfare, go unreported and uncorrected.  This
 
13 problem adversely affects both the well-being and productivity of
 
14 these concerned employees, as well as the functioning of the
 
15 affected agencies or organizations.  It also undermines and
 
16 erodes the public's trust and confidence in government and
 
17 private sector organizations and their employees.  The
 
18 Whistleblowers' Protection Act, codified as part V of chapter
 
19 378, Hawaii Revised Statutes, attempts to provide some 
 

 
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 1 protection to employees who speak out.  The Act provides for the
 
 2 ability to bring civil action for appropriate injunctive relief,
 
 3 or actual damages, or both, within ninety days after the alleged
 
 4 violation of the Act.  The Act also provides for potential
 
 5 reinstatement of the employee, payment of back wages, full
 
 6 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.  Other states, such as
 
10 California, and the federal government have adopted similar
 
11 legislation.  In addition, the Government Accountability Project,
 
12 an organization which provides assistance to whistleblowers, has
 
13 developed a Model State Whistleblower Protection Act.  A
 
14 reference entitled "The Whistleblowers," by Myron Pertz Glazer
 
15 and Penina Migdal Glazer, researches and analyzes the relatively
 
16 recent phenomenon of whistleblowing or ethical protest.  Glazer
 
17 and Glazer have concluded that these employees have often "risked
 
18 their lives, their careers, and their security to 'do the right
 
19 thing'."  They found that "many government and private sector
 
20 officials have implemented a consistent pattern of harsh
 
21 reprisals - from blacklisting, dismissal, or transfer, to
 
22 personal harassment - in an effort to define the dissident
 
23 employees as the source of the problem, to undermine their
 

 
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 1 credibility and effectiveness as potential witnesses."  Although
 
 2 Hawaii's Whistleblowers' Protection Act does provide some
 
 3 protection from and potential compensation for, employer
 
 4 retaliation, penalties for violations of the Act are relatively
 
 5 minor (a fine of not more than $500 for each violation) and does
 
 6 not provide protection to employees who report violations or
 
 7 situations demonstrating danger to public health, safety, and
 
 8 welfare to their employers.  Hawaii's Whistleblowers' Protection
 
 9 Act provides for a ninety-day period to bring civil action.  Such
 
10 a short statute of limitation may not be adequate in some cases.
 
11 Often, more time is needed for the whistleblower to gather the
 
12 necessary evidence of retaliation and to support the
 
13 whistleblowers' original allegations regarding illegal activities
 
14 and to discuss the situation with legal counsel, union
 
15 representatives, and evaluate the potential personal and career
 
16 ramifications of pursuing further actions.  Thus, a longer period
 
17 of time is warranted.
 
18      The purpose of this Act is to strengthen the protection
 
19 provided by Hawaii's Whistleblower Protection Act by providing
 
20 protection to employees who report violations or law, rule,
 
21 regulation, ordinance, or information demonstrating danger to the
 
22 public health, safety, and welfare to governmental entities or
 
23 their employers.  Additionally, this Act increases the penalties
 
24 for violations and increases the statute of limitations.
 

 
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 1      SECTION 2.  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.  An employer
 
 5 shall not discharge, threaten, or otherwise discriminate against
 
 6 an employee regarding the employee's compensation, terms,
 
 7 conditions, location, or privileges of employment because:
 
 8      (1)  The employee, or a person acting on behalf of the
 
 9           employee, reports or is about to report to the employer
 
10           or a public body, verbally or in writing, a violation
 
11           or a suspected violation of a law [or], rule,
 
12           regulation, or ordinance, adopted pursuant to a law of
 
13           this State, a political subdivision of this State, or
 
14           the United States, or information demonstrating danger
 
15           to public health, safety, and welfare, unless the
 
16           employee knows that the report is false; or
 
17      (2)  An employee is requested by a public body to
 
18           participate in an investigation, hearing, or inquiry
 
19           held by that public body, or a court action."
 
20      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 
21 amended by amending subsection (a) to read as follows:
 
22      "(a)  A person who alleges a violation of this part may
 
23 bring a civil action for appropriate injunctive relief, or actual
 

 
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 1 damages, or both within [ninety days] two years after the
 
 2 occurrence of the alleged violation of this part."
 
 3      SECTION 4.  Section 378-65, Hawaii Revised Statutes, is
 
 4 amended by amending subsection (a) to read as follows:
 
 5      "(a)  A person who violates this part shall be fined not
 
 6 more than [$500] $10,000 for each violation."
 
 7      SECTION 5.  This Act does not affect rights and duties that
 
 8 matured, penalties that were incurred, and proceedings that were
 
 9 begun, before its effective date.
 
10      SECTION 6.  Statutory material to be repealed is bracketed.
 
11 New statutory material is underscored.
 
12      SECTION 7.  This Act shall take effect upon its approval.
 
13 
 
14                       INTRODUCED BY:  ___________________________