REPORT TITLE:
Whistleblowers' Protection Act


DESCRIPTION:
Clarifying and strengthening the Whistleblowers' Protection Act.
(SB2192 SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE 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 of Hawaii, political subdivisions of this State, or the
 
 5 United States, or situations which demonstrate danger to public
 
 6 health, safety, and welfare, which they observe during the course
 
 7 of their work.  Unfortunately, employees do not report many of
 
 8 these alleged violations or situations due to concerns about
 
 9 potential retaliatory discharge, or threats to or discrimination
 
10 against them for reporting these violations or situations.  Thus,
 
11 out of fear, violations or situations demonstrating danger to
 
12 public health, safety, and welfare go unreported and uncorrected.
 
13 This problem adversely affects both the well-being and
 
14 productivity of these concerned employees, as well as the
 
15 functions of the affected agencies or organizations.  It also
 
16 undermines and erodes the public's trust and confidence in
 
17 government and private sector organizations and their employees.
 
18      The Whistleblowers' Protection Act, codified as part V of
 
19 chapter 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 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 California
 
10 and the federal government have adopted similar legislation.
 
11      In addition, the Government Accountability Project, an
 
12 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."
 
 2      Although Hawaii's Whistleblowers' Protection Act does
 
 3 provide some protection from and potential compensation for
 
 4 employer retaliation, penalties for violations of the Act are
 
 5 relatively minor (a fine of not more than $500 for each
 
 6 violation) and does not provide protection to employees who
 
 7 report to their employers violations or situations demonstrating
 
 8 danger to public health, safety, and welfare.  Hawaii's
 
 9 Whistleblowers' Protection Act provides for a ninety-day period
 
10 to bring civil action.  Such a short statute of limitations may
 
11 not be adequate in some cases.  Often, more time is needed for
 
12 the whistleblower to gather the necessary evidence of retaliation
 
13 and to support the whistleblowers' original allegations regarding
 
14 illegal activities; to discuss the situation with legal counsel
 
15 and union representatives; and to evaluate the potential personal
 
16 and career ramifications of pursuing further actions.  Thus, a
 
17 longer time period is warranted.
 
18      The purpose of this Act is to strengthen the protection
 
19 provided by Hawaii's Whistleblowers' Protection Act by providing
 
20 protection to employees who report to government entities or
 
21 their employers violations of law, rule, regulation, or
 
22 ordinance; or information demonstrating danger to the public
 
23 health, safety, and welfare.  Consequently, this Act increases
 

 
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 1 the penalties for violations and increases the duration of the
 
 2 statute of limitations.
 
 3      SECTION 2.  Section 378-62, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "[[]§378-62[]]  Discharge of, threats to, or discrimination
 
 6 against employee for reporting violations of law.  An employer
 
 7 shall not discharge, threaten, or otherwise discriminate against
 
 8 an employee regarding the employee's compensation, terms,
 
 9 conditions, location, or privileges of employment because:
 
10      (1)  The employee, or a person acting on behalf of the
 
11           employee, reports or is about to report to the employer
 
12           or a public body, verbally or in writing, a violation
 
13           or a suspected violation of a law [or], rule,
 
14           regulation, or ordinance adopted pursuant to a law of
 
15           this State, a political subdivision of this State, or
 
16           the United States, or information demonstrating danger
 
17           to public health, safety, and welfare, unless the
 
18           employee knows that the report is false; or
 
19      (2)  An employee is requested by a public body to
 
20           participate in an investigation, hearing, or inquiry
 
21           held by that public body, or a court action."
 
22      SECTION 3.  Section 378-63, Hawaii Revised Statutes, is
 
23 amended by amending subsection (a) to read as follows:
 

 
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 1      "(a)  A person who alleges a violation of this part may
 
 2 bring a civil action for appropriate injunctive relief, or actual
 
 3 damages, or both within [ninety days] two years after the
 
 4 occurrence of the alleged violation of this part."
 
 5      SECTION 4.  Section 378-65, Hawaii Revised Statutes, is
 
 6 amended by amending subsection (a) to read as follows:
 
 7      "(a)  A person who violates this part shall be fined not
 
 8 more than [$500] $10,000 for each violation."
 
 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.