BILL ANALYSIS Ó
SB 496
Page 1
Date of Hearing: June 25, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 496 (Wright) - As Amended: June 11, 2013
SENATE VOTE : 34-0
SUBJECT : Whistleblower Protection
KEY ISSUE : SHOULD the legislature strengthen whistleblower
protection Laws consistently with existing practice and
procedure?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial measure clarifies rights and procedures
under the California Whistleblower Protection Act and related
laws, codifying case law regarding court review and more
explicitly setting forth administrative and judicial processes,
and updating related whistleblower protections against
retaliation. Supporters argue that clarification will improve
protections and give greater guidance to parties, administrative
agencies and the courts. The bill has no known opposition.
SUMMARY : Revises whistleblower protection. Specifically, this
bill :
1)Clarifies that there are two different administrative hearings
contemplated by the Act, an initial informal hearing and an
evidentiary hearing.
2)Codifies case law holding that a complainant has exhausted
required administrative processes by filing a complaint with
the State Personnel Board (SPB) and waiting the required 70-
day statutory period if the SPB has not first issued findings
of the informal hearing or investigation, following which the
complainant is entitled to file an independent civil action
for de novo consideration.
3)As an exception to the de novo civil action, permits the SPB
to consolidate a complaint with a related appeal of
disciplinary action filed by the same complainant, and permits
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the consolidated matter to be reviewed only by writ
proceeding.
4)Provides that a civil action filed by the whistleblower does
not preclude an accused department or manager from requesting
an evidentiary hearing through the administrative process, nor
does the request of an accused department or manager for an
evidentiary hearing under the administrative process preclude
a whistleblower from filing a civil action.
5)Clarifies that SPB's findings from the informal hearing or
investigation are not binding in an evidentiary hearing or a
civil action.
6)Provides that for the purposes of appealing a decision in an
administrative evidentiary hearing separate and apart from a
whistleblower's civil action, the SPB shall issue a decision
which any party, if aggrieved, can appeal by filing a petition
for writ of mandate with the superior court. The bill
provides that this process does not apply with respect to the
complainant's independent civil action and the bill does not
intend to specifically authorize that findings from the
administrative evidentiary hearing collaterally estop,
preclude issues, or otherwise affect the fact-finding in a
complainant's separate civil action.
7)Clarifies that an action for damages pursuant to the
California Whistleblower Protection Act is exempt from the
presentation requirements of the Government Claims Act.
8)Prohibits an employer from retaliating against an employee
because the employer perceives that the employee may disclose
information to a government or law enforcement agency, or to a
person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the
violation, if the employee has reasonable cause to believe
that the information discloses a violation of state or federal
statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation.
9)Prohibits an employer from retaliating against an employee for
disclosing, or refusing to participate in an activity that
would result in, a violation of or noncompliance with a local
rule or regulation.
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EXISTING LAW :
1)Protects the right of state employees to report improper
government activity, as defined, without fear of retribution
through the California Whistleblower Protection Act (WPA).
(Government Code section 8547 et seq.)
2)Prohibits any state employee from using his or her official
authority for the purposes of interfering with another's right
to report improper government activity, as defined. (Id.)
3)Requires a whistleblower who alleges retaliation for reporting
improper governmental activity to file a written complaint
with his or her appointing power and authorizes the
whistleblower also to file a copy of the complaint with the
SPB. (Id.)
4)Requires SPB to initiate an investigation or hearing within 10
days of receiving the complaint and requires SPB's Executive
Officer to complete findings of the investigation or hearing
within 60 working days thereafter (i.e., 70 days total).
(Government Code section 19683.)
5)Permits the Executive Officer to consolidate the retaliation
claim with other related claims by the whistleblower such as
an appeal of adverse action, in which case, the 70-day time
frame for initiating the investigation or hearing and
completing findings is not applicable. (Id.)
6)Subjects any person found to have intentionally engaged in
retaliation prohibited by the Act to penalties, including a
fine not to exceed $10,000, imprisonment not to exceed one
year, and, if a civil service employee, adverse action, as
defined. (Government Code section 8547 et seq.)
7)Provides a whistleblower alleging retaliation a right to bring
a separate civil action for damages in superior court
independent of the SPB administrative process provided that
the whistleblower has filed a written complaint with the SPB
and the Executive Officer has issued findings or time for
issuing findings has expired. (Government Code section 8547
et seq.)
8)Pursuant to the Government Claims Act, requires written
presentment of certain claims to the state as a prerequisite
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to commencement of actions for money or damages. (Government
Code section 905.2.)
9)Prohibits an employer from making, adopting, or enforcing any
rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement
agency, if the employee has reasonable cause to believe that
the information discloses a violation of state or federal
statute, or a violation of or noncompliance with a state or
federal rule or regulation. Existing law prohibits any
employer from retaliating against an employee for disclosing
information to a government or law enforcement agency pursuant
to these provisions or for refusing to participate in an
activity that would result in a violation of a state or
federal statute or noncompliance with a state or federal rule
or regulation. Under existing law, an employer who violates
these provisions is guilty of a crime. (Labor Code section
1102.5.)
COMMENTS : The author explains the bill as follows: "SB 496 is
designed to expand protections for whistleblowers in the public
and private sectors by closing some loopholes and clarifying
rules and procedures in filing a claim and seeking redress in a
civil action. It clarifies rules to permit civil actions
without filing a Tort Claim application, clarifies terms,
expands coverage to local laws and firings in anticipation of a
whistleblower disclosure."
Clarification of Whistleblower Protections. This measure
clarifies rights and procedures under the California
Whistleblower Protection Act and related laws, codifying case
law regarding court review and more explicitly setting forth
administrative and judicial processes, and updating related
whistleblower protections against retaliation. Supporters argue
that clarification will improve protections and give greater
guidance to parties, administrative agencies and the courts.
Importantly, the bill would expressly codify and clarify the
California Supreme Court's holding in State Board of
Chiropractic Examiners v. Superior Court (Arbuckle) 2009 45 Cal.
4th 963 that "[t]he Legislature expressly authorized a damages
action in superior court for whistleblower retaliation
(citation), and in doing so it expressly acknowledged the
existence of a parallel administrative remedy." (45 Cal. 4th
963 at 976.)
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The bill further clarifies that that notice of WPA claims is
accomplished by filing with the SPB, obviating the need for
additional presentment under the Government Claims Act.
Finally, the bill makes prudent changes to the corresponding
anti-retaliation provisions of the Labor Code so that complaints
about alleged violations of local law are covered, as well as
internal complaints and perceived or anticipatory retaliation.
REGISTERED SUPPORT / OPPOSITION :
Support
California Employment Lawyers Association
Union of American Physicians and Dentists
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334