H-2216.1

SECOND SUBSTITUTE HOUSE BILL 1965

ByHouse Appropriations (originally sponsored by Representatives Hansen, Stonier, Sullivan, Riccelli, Lekanoff, Cody, Macri, Ormsby, Appleton, Fitzgibbon, Ortiz-Self, and Pollet)

AN ACT Relating to allowing whistleblowers to bring actions on behalf of the state for violations of workplace protections; adding a new chapter to Title 49 RCW; and creating a new section.

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

(1) "Agency" means the department of labor and industries, except that for purposes of chapter 49.60 RCW "agency" means the Washington state human rights commission.

(2) "Person" means any natural person, partnership, corporation, association, or other legal entity, including any local or political subdivision of a state.

(3) "Qui tam relator" or "relator" means a person who brings or seeks to bring an action under section 3 of this act.

(4) "Qui tam action" means an action brought by a person under section 3 of this act.

(2) A relator that prevails in a qui tam action is entitled to an award of reasonable attorneys' fees and costs.

(3) No qui tam action may be brought if the agency, regarding the same facts as alleged in the qui tam action, issued a notice of assessment, determination of compliance, or order, or otherwise resolved the complaint.

(4) A qui tam action must be commenced within the same period of time that the agency would have to take action based on the same set of alleged facts. The statute of limitations for bringing a qui tam action is tolled from the date a relator files a notice with the agency or the date the agency commences an investigation.

(5)(a) No qui tam action may be brought with respect to modifying, revoking, or suspending a license, variance, or permit; or for any violation of a posting, notice, agency reporting, or filing requirement, except where the filing or reporting requirement involves injury reporting or a safety or health violation.

(b) Where an employer has voluntarily entered into consultation under RCW 49.17.250, no qui tam action may be brought with respect to any alleged violation included in the scope of the consultation. An employer who has been notified pursuant to section 5 of this act may not then enter into consultation under RCW 49.17.250 to avoid a qui tam action.

(6) The requirements of Rule 23 of the superior court rules of civil procedure do not apply to a qui tam action.

(7) The right to bring a qui tam action under this section may not be impaired by any private agreement.

(8) A qui tam action is a public action and does not preclude a cause of action by an individual or individuals or operate as an estoppel for relief based on the same set of alleged facts, except that a court may not permit a double recovery.

(9) A person who is an employee of the entity alleged to have violated a law enumerated in section 4 of this act may designate in writing a representative organization to initiate a qui tam action on the person's behalf. The representative organization, which may be a labor organization, must be one that regularly assists in enforcement of one or more of the laws enumerated in section 4 of this act.

(a) Chapter 49.46 RCW, known as the minimum wage act;

(b) Chapter 49.48 RCW, relating to the payment of wages;

(c) Chapter 49.52 RCW, relating to wage rebates;

(d) RCW 49.28.130 through 49.28.150, relating to health care facility employee overtime;

(e) Chapter 39.12 RCW, relating to prevailing wage;

(f) Chapter 49.40 RCW, relating to seasonal labor;

(g) Chapter 49.17 RCW, the Washington industrial safety and health act of 1973;

(h) Chapter 49.19 RCW, relating to safety in health care settings; chapter 49.22 RCW, relating to safety in late night retail establishments; chapter 49.24 RCW, relating to safety for underground workers, and chapter 49.26 RCW, relating to asbestos safety;

(i) Chapter 49.77 RCW, known as military family leave;

(j) Chapter 49.58 RCW, known as gender equal pay and advancement opportunities;

(k) Chapter 49.60 RCW, known as the Washington law against discrimination;

(l) Chapter 19.30 RCW, relating to farm labor contractors;

(m) Chapter 49.30 RCW, relating to agricultural labor;

(n) RCW 43.70.075, relating to health care employee whistleblower retaliation protection;

(o) Chapter 49.12 RCW, known as the industrial welfare act; and

(p) Section 8 of this act.

(2) For any provision of law referenced in this section where no civil penalty is specifically provided by law, a civil penalty of five hundred dollars is established. A penalty shall be awarded for each employee aggrieved by the violation during each two-week time period. A court may award a lesser amount of civil penalties than those specified in this subsection if, based on the fact and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive or confiscatory.

(2) If the agency intends to investigate the alleged violation, the agency must notify the relator and make a determination within one hundred eighty days of receiving the notice under subsection (1) of this section. If the agency decides not to investigate the alleged violation, it must notify the relator within sixty business days of the date it receives the notification submitted by the relator. Upon receiving notice that the agency does not intend to investigate or if the agency does not make a determination within one hundred eighty days, the relator may commence a qui tam action.

(3) As part of its investigation, the agency may attempt to remedy the alleged violation through settlement. If the settlement obtained by the agency provides the aggrieved employee or employees with a full remedy of not less than one hundred percent of any wrongfully withheld wages or benefits, including twelve percent interest per annum, and the aggrieved employees receive payment in full prior to the end of the one hundred eighty-day investigation period, the agency shall notify the relator that the agency will not commence an action and the settlement shall preclude further claims for the same wages or benefits paid in the settlement.

(4) If the agency objects to the state being represented by a particular attorney proposed by the relator, the agency may file an objection to the attorney general. Upon finding, after notice and hearing, that, based on the attorney's past conduct while representing a client or clients, the attorney does not meet the required professional standards of representatives, or, alternatively, if the attorney fails to zealously pursue the remedies available under this chapter, the attorney general may, within thirty days of receiving the objection, order that the qui tam action may not be filed or maintained by the particular attorney on behalf of the relator.

(a) As of right within thirty days after the filing of the qui tam action;

(b) For good cause shown, as determined by the court, after the expiration of the thirty-day period.

(2) If the agency intervenes in a qui tam action, the agency shall have primary responsibility for litigating the action and shall not be bound by an act of the relator in bringing the action. If the agency proposes to settle a qui tam action, the agency must give notice to the relator and the attorney general. The court may allow the attorney general to intervene and object to the settlement. If the agency proposes to dismiss a qui tam action, the agency must give notice to the relator and the relator must have an opportunity to be heard. The agency may dismiss or settle the action if court determines that the dismissal or settlement is fair, adequate, reasonable, and in the public interest.

(3) If the agency does not intervene, the relator shall have the right to litigate the action. The court must review and approve any settlement. The proposed settlement must be submitted to the agency and to the attorney general at the same time that it is submitted to the court, and the agency may present to the court its position on the proposed settlement or intervene as provided in subsection (1) of this section. The court may also allow the attorney general to intervene and object to the dismissal. The court shall approve a settlement only upon a determination that it is fair, adequate, reasonable, and in the public interest.

(4) Any settlement of a qui tam action may not be confidential.

(i) If the agency has not intervened, forty percent to the relator and sixty percent to the agency.

(ii) If the agency has intervened, twenty percent to the relator and eighty percent to the agency.

(b) Amounts distributed to the agency shall be used for enforcement of this title and education about the rights and obligations enforceable through this title by the agency.

(2) Damages recovered in a qui tam action must be awarded to the agency for distribution to aggrieved employees. The agency may request the appointment of an administrative law judge or special master to assist in the distribution of the amounts.

(3) This section does not limit the state's right to seek restitution and damages, where available, for aggrieved employees as part of a qui tam action in which it has intervened.

(2) Any employee aggrieved by a violation of this section may:

(a) Bring an action in court for compensatory damages or equitable relief, including restraint of prohibited actions, restitution of wages or benefits, reinstatement, costs, reasonable attorneys' fees, and any other appropriate relief; and, in addition,

(b) If the aggrieved employee has been discharged from employment because of the exercise of the rights afforded by this chapter, provide notice to the agency pursuant to section 5 of this act.

(i) Upon receipt of such notification, the agency shall commence an expedited investigation within ten days to be completed within thirty days.

(ii) For purposes of this subsection (2)(b), a rebuttable presumption is established that the discharge of any employee who engaged in any conduct allowed by this chapter within ninety days after the employee engaged in the conduct is retaliatory and in violation of section 1 of this act.

(iii) The employer may rebut the presumption by showing by clear and convincing evidence that it had a legitimate, nondiscriminatory reason to discharge the employee, which was not motivated in any part by conduct allowed by this chapter.

(iv) If the employer fails to rebut the presumption, the agency shall order the immediate reinstatement of the employee. The employer may appeal the order of reinstatement pursuant to chapter 34.05 RCW.

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