BILL ANALYSIS Ó
SB 496
Page 1
SENATE THIRD READING
SB 496 (Wright)
As Amended June 25, 2013
Majority vote
SENATE VOTE :34-0
JUDICIARY 10-0 APPROPRIATIONS 13-2
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bocanegra, |
| |Alejo, Chau, Dickinson, | |Bradford, |
| |Garcia, Gorell, | |Ian Calderon, Campos, |
| |Maienschein, Muratsuchi, | |Eggman, Gomez, Hall, |
| |Stone | |Holden, Linder, Pan, |
| | | |Quirk, Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
| | |Nays:|Harkey, Bigelow |
| | | | |
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SUMMARY : Revises whistleblower protection. Specifically, this
bill :
1)Clarifies that there are two different administrative hearings
contemplated by the California Whistleblower Protection Act
(WPA), 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)Permits, as an exception to the de novo civil action, the SPB
to consolidate a complaint with a related appeal of
disciplinary action filed by the same complainant, and permits
the decision after an evidentiary hearing in the consolidated
matter to be reviewed only by writ proceeding.
4)Provides that a civil action filed by the whistleblower does
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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 or entitled to deference 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 an aggrieved party can appeal by filing a petition for
writ of mandate with the superior court.
7)Clarifies existing law that an action for damages pursuant to
the WPA is exempt from the presentation requirements of the
Government Claims Act.
8)Prohibits an employer from retaliating against an employee
because the employer believes that the employee disclosed or
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 or noncompliance, 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, regardless of whether disclosing the
information is part of the employee's job duties.
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.
EXISTING LAW :
1)Protects the right of state employees to report improper
government activity, as defined, without fear of retribution
through the WPA.
2)Prohibits any state employee from using his or her official
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authority for the purposes of interfering with another's right
to report improper government activity, as defined.
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.
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).
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.
6)Subjects any person found to have intentionally engaged in
retaliation prohibited by the WPA 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.
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.
8)Requires, pursuant to the Government Claims Act, written
presentment of certain claims to the state as a prerequisite
to commencement of actions for money or damages.
9)Makes technical and clarifying statutory revisions to the SPB
complaint process to harmonize Government Code Sections
8547.3, 8547.8 and 19683.
10)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
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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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Minor absorbable costs to the SPB and the Department of Human
Resources, as the bill is generally consistent with current
practice and existing caseloads are not significant. According
to the SPB's most recent Whistleblower Complaint Report, for
2011, 62 whistleblower retaliation complaints were filed. Of
those, 12 were accepted, of which nine were dismissed and
three were consolidated with a pending evidentiary hearing.
2)Any costs to local governments will not be state reimbursable.
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."
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
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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.)
The bill further clarifies that notice of WPA claims is
accomplished by filing with the SPB, obviating the need for
additional presentment under the Government Claims Act,
consistently with the existing law.
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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0001435