5200-S

AN ACT Relating to the protection of private employee rights; amending RCW 49.60.250; adding a new chapter to Title 49 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. This chapter may be cited as the private whistleblowers' protection act.

NEW SECTION. Sec. 2. Private employees have a right and should be encouraged to disclose, to the extent not expressly prohibited by law, actions by their employers that are in violation of federal, state, or local laws, rules, or regulations, or that otherwise create a threat to the health and safety of themselves or the public. It is the intent of the legislature that private employees who object to or report illegal actions by their employers or other persons or cooperate in the investigation or prosecution of illegal actions by their employers or other persons be protected from retaliation by their employers.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Damages" means damages for injury or loss caused by each violation of this chapter, including reasonable attorneys' fees.

(2) "Employee" means any employee as defined in common law and an individual acting as an independent contractor, and does not include any individual employed by his or her parents, spouse, or child, or in the domestic service of any person.

(3) "Private employer" means any corporation, partnership, joint venture, limited partnership, nonprofit association or corporation, or individual or any officer, employee, or agent thereof, and includes any private entity acting as an independent contractor employed by or acting on behalf of the federal, state, or local government.

(4) "Public body" means all of the following:

(a) An officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the federal, state, or local government;

(b) An agency, board, commission, council, member, or employee of the legislative branch of the federal, state, or local government;

(5) "Retaliatory action" means an adverse action regarding the terms and conditions of employment of an employee or an individual working as an independent contractor, and includes, but is not limited to:

(a) Denial of adequate staff to perform duties;

(b) Frequent staff changes;

(d) Refusal to assign meaningful work;

(e) Unwarranted and unsubstantiated reprimands or unsatisfactory performance evaluations;

(f) Demotion;

(g) Reduction in pay;

(h) Denial of promotion;

(i) Suspension;

(j) Dismissal;

(k) Denial of employment; and

(l) A supervisor or superior encouraging coworkers to behave in a hostile manner toward the employee.

NEW SECTION. Sec. 4. (1) A private employer shall not take any retaliatory action or threaten to take any retaliatory action against an employee because:

(a) The employee, acting in good faith, or a person acting on behalf of the employee, reports, or was about to report, orally or in writing, what the employee has reasonable cause to believe is a violation of a law, rule, or regulation adopted under the laws of this state, a political subdivision of this state, or the United States to the employer or a public body;

(b) The employee, acting in good faith, or a person acting on behalf of the employee, reports, or was about to report, to the employer, or a public body, orally or in writing, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual;

(c) The employee is requested or ordered by a public body or official to participate in an investigation, hearing, or inquiry, or in a court action the subject of which is illegal activity or other wrongdoing by his or her employer; or

(d) The employee, acting in good faith, has refused to carry out a directive that would expose the employee or any individual to a condition that would result in serious injury, illness, or death, after having sought and been unable to obtain a correction of the dangerous condition from the employer.

(2) Subsection (1) of this section does not apply to an employee who has reported or caused to be reported a violation or unsafe condition or practice to a public body, unless the employee has first brought the alleged violation, condition, or practice to the attention of a person having supervisory authority for the employer and has allowed the employer a reasonable opportunity to correct that violation, condition, or practice. Prior notice to an employer is not required if the employee has reasonable cause to believe: (i) That reports to the employer would result in retaliation or harassment; (ii) that a crime has been committed; (iii) that an emergency involving personal or public safety exists; or (iv) that the violation or unsafe condition is caused by a person other than the employer.

(3) A person shall not direct, encourage, or otherwise seek to persuade a private employer to take any retaliatory action or threaten to take any retaliatory action against an employee for any of the reasons set forth in subsection (1) (a), (b), or (c) of this section.

NEW SECTION. Sec. 5. (1) A person who alleges a violation of this chapter may bring a civil action for appropriate injunctive relief, or actual damages, or both within three years after the cessation of any occurrence of the alleged violation of this chapter.

(2) An action commenced pursuant to subsection (1) of this section may be brought in the superior court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed or has its principal place of business.

(3) An employee claiming that he or she or a person acting on his or her behalf was about to make a report of the nature described in section 4(1) (a) and (b) of this act shall prove that element of the claim by clear and convincing evidence in order to prevail. Claims based on other protected activities need only be proved by a preponderance of evidence.

(4) A court, in rendering a judgment in an action brought under this chapter, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorneys' fees and witness fees, if the court determines that the award is appropriate.

(5) A person who violates this chapter is liable for a civil fine of not more than three thousand dollars. Any fine that is ordered pursuant to this chapter shall be paid into the state treasury and credited to the general fund.

NEW SECTION. Sec. 6. This chapter shall not be construed: (1) To diminish or impair the rights of a person under any collective bargaining agreement; (2) to derogate any common law rights of an employee; or (3) to limit in any way the rights and powers granted under RCW 4.24.500, 4.24.510, and 4.24.520.

NEW SECTION. Sec. 7. (1) A violation of this chapter is an unfair practice under chapter 49.60 RCW.

(2) An employee alleging a violation of this chapter may, as an alternative to commencing a civil action under section 5 of this act, file a complaint with the state human rights commission pursuant to chapter 49.60 RCW.

Sec. 8. RCW 49.60.250 and 1992 c 118 s 5 are each amended to read as follows:

(1) In case of failure to reach an agreement for the elimination of such unfair practice, and upon the entry of findings to that effect, the entire file, including the complaint and any and all findings made, shall be certified to the chairperson of the commission. The chairperson of the commission shall thereupon request the appointment of an administrative law judge under Title 34 RCW to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the administrative law judge, at a time and place to be specified in such notice.

(2) The place of any such hearing may be the office of the commission or another place designated by it. The case in support of the complaint shall be presented at the hearing by counsel for the commission: PROVIDED, That the complainant may retain independent counsel and submit testimony and be fully heard. No member or employee of the commission who previously made the investigation or caused the notice to be issued shall participate in the hearing except as a witness, nor shall the member or employee participate in the deliberations of the administrative law judge in such case. Any endeavors or negotiations for conciliation shall not be received in evidence.

(3) The respondent shall file a written answer to the complaint and appear at the hearing in person or otherwise, with or without counsel, and submit testimony and be fully heard. The respondent has the right to cross-examine the complainant.

(4) The administrative law judge conducting any hearing may permit reasonable amendment to any complaint or answer. Testimony taken at the hearing shall be under oath and recorded.

(5) If, upon all the evidence, the administrative law judge finds that the respondent has engaged in any unfair practice, the administrative law judge shall state findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, an admission or restoration to full membership rights in any respondent organization, or to take such other action as, in the judgment of the administrative law judge, will effectuate the purposes of this chapter, including action that could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed one thousand dollars, and including a requirement for report of the matter on compliance.

(6) If a determination is made that retaliatory action, as defined in RCW 42.40.050, has been taken against a whistleblower, as defined in RCW 42.40.020, the administrative law judge may, in addition to any other remedy, impose a civil penalty upon the retaliator of up to three thousand dollars and issue an order to the state employer to suspend the retaliator for up to thirty days without pay. At a minimum, the administrative law judge shall require that a letter of reprimand be placed in the retaliator's personnel file. All penalties recovered shall be paid into the state treasury and credited to the general fund.

(7) If a determination is made that a private employer has retaliated against an employee in violation of the private whistleblowers' protection act, chapter 49.-- RCW (sections 1 through 7 of this act), the administrative law judge may, in addition to any other remedy, impose a civil penalty upon the private employer of up to three thousand dollars. All penalties recovered shall be paid into the state treasury and credited to the general fund. In any case under the private whistleblowers' protection act, chapter 49.-- RCW (sections 1 through 7 of this act) the administrative law judge may require payment to the general fund of all or a portion of the commission's actual costs of processing the case by any one or more of the parties joined in the case.

(8) The final order of the administrative law judge shall include a notice to the parties of the right to obtain judicial review of the order by appeal in accordance with the provisions of RCW 34.05.510 through 34.05.598, and that such appeal must be served and filed within thirty days after the service of the order on the parties.

((~~(8)~~)) (9) If, upon all the evidence, the administrative law judge finds that the respondent has not engaged in any alleged unfair practice, the administrative law judge shall state findings of fact and shall similarly issue and file an order dismissing the complaint.

((~~(9)~~)) (10) An order dismissing a complaint may include an award of reasonable attorneys' fees in favor of the respondent if the administrative law judge concludes that the complaint was frivolous, unreasonable, or groundless. In an order dismissing a complaint brought under the private whistleblowers' protection act, chapter 49.-- RCW (sections 1 through 7 of this act) an order dismissing a complaint shall include an award of reasonable attorneys' fees in favor of the respondent and may impose a civil penalty of up to one thousand dollars against the complainant if the administrative law judge concludes that the complaint was frivolous, unreasonable, or groundless.

((~~(10)~~)) (11) The commission shall establish rules of practice to govern, expedite, and effectuate the foregoing procedure.

NEW SECTION. Sec. 9. Sections 1 through 7 of this act shall constitute a new chapter in Title 49 RCW.