BILL ANALYSIS Ó
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UNFINISHED BUSINESS
Bill No: SB 496
Author: Wright (D)
Amended: 9/6/13
Vote: 21
SENATE PUBLIC EMPLOYMENT & RETIREMENT COMM : 5-0, 4/22/13
AYES: Beall, Walters, Block, Gaines, Yee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 34-0, 5/13/13 (Consent)
AYES: Anderson, Beall, Berryhill, Block, Cannella, Corbett,
Correa, De León, DeSaulnier, Emmerson, Evans, Fuller,
Galgiani, Hancock, Hernandez, Hill, Hueso, Huff, Jackson,
Knight, Lara, Leno, Lieu, Liu, Monning, Nielsen, Padilla,
Pavley, Roth, Steinberg, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Calderon, Gaines, Price, Walters, Vacancy,
Vacancy
ASSEMBLY FLOOR : 76-0, 9/10/13 - See last page for vote
SUBJECT : California Whistleblower Protection Act:
administrative procedure
SOURCE : Author
DIGEST : This bill makes several technical and substantive
changes to the whistleblower protection statutes for public
employees and clarifies procedural rules for the State Personnel
Board's (SPB) administrative hearings and litigation over
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procedural questions regarding the right to sue.
Assembly Amendments delete provisions related to the following:
1) an informal hearing following a complaint; 2) authorization
of an executive officer to consolidate a complaint with a
related appeal; 3) authorization of an aggrieved party to file a
petition for writ of mandate for review of the decision; 4)
authorization of the complainant to file a civil action for
damages; 5) provisions that the executive officer's findings of
the informal hearing are not binding; 6) specifications that the
filing of a civil action by a complainant does not preclude the
request for an evidentiary hearing as specified; and instead
modify these requirements to require the SPB to render its
decision on the consolidated matter within six months of the
date of the order of consolidation, as specified; and specify
this bill incorporates additional changes to the Labor Code
proposed by SB 666 (Steinberg) and AB 263 (Monning) that would
become operative if this bill and either SB 666 or AB 263, or
both, are enacted and this bill is enacted last.
ANALYSIS : 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 (Act).
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.
3.Requires a whistleblower who alleges retaliation for reporting
improper governmental activity to file a written complaint, as
specified.
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, in which
case, the 70-day time frame is not applicable.
6.Subjects any person found to have intentionally engaged in
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retaliation prohibited by the Act to penalties, as defined.
7.Provides a whistleblower alleging retaliation a right to bring
a separate civil action independent of the SPB administrative
process, as defined.
8.Permits a state employee who is found by the SPB to have
illegally retaliated against a whistleblower, to request a
hearing before the SPB regarding the findings.
This bill:
1.Requires the SPB to render decisions on consolidated
complaints under the Whistleblower Protection Act (WPA) within
a reasonable time after the conclusion of the hearing or
investigation, except that the period does not exceed six
months from the date of the order of consolidation, unless
extended by the SPB for a period of not more than 45
additional days from the expiration of the six-month period.
2.Clarifies existing law that an action for damages pursuant to
the WPA is exempt from the presentation requirements of the
Government Claims Act.
3.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.
4.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.
5.Incorporates additional changes to the Labor Code proposed by
SB 666 (Steinberg) and AB 263 (Monning) that would become
operative if this bill and either SB 666 or AB 263, or both,
are enacted and this bill is enacted last.
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Prior Legislation
SB 1505 (Yee), 2008, would have extended the protections of the
Act to former state employees and added reasonable attorney's
fees to the relief one may recover under the Act. This bill was
vetoed by Governor Schwarzenegger.
SB 1267 (Yee), 2008, would have extended the Act's provisions
to specified former employees, eliminated its "notice of
findings" process, limited the SPB's administrative hearing
process in these cases, and provided whistleblowers with an
immediate right-to-sue letter option. This bill died in the
Senate Appropriations Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Assembly Appropriations Committee:
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.
Any costs to local governments are not state reimbursable.
SUPPORT : (Verified 9/10/13)
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore & Warehouse Union
Professional & Technical Engineers, Local 21
United Food and Commercial Workers Union, Western States Council
Union of American Physicians and Dentists
UNITE HERE
Utility Workers Union of America, Local 132
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ARGUMENTS IN SUPPORT : This bill clarifies rights and
procedures under the California Whistleblower Protection Act and
related laws. Supporters argue that clarification will improve
protections and give greater guidance to parties, administrative
agencies and the courts. Although as amended the bill no longer
codifies the State Board of Chiropractic Examiners v. Superior
Court (Arbuckle) 2009 45 Cal. 4th 963.case, neither does it
disturb the court's holding.
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 existing law.
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.
Consistently with existing law, these claims are not subject to
administrative exhaustion.
ASSEMBLY FLOOR : 76-0, 9/10/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Beth
Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,
Grove, Hagman, Hall, Harkey, Roger Hernández, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams,
Yamada, John A. Pérez
NO VOTE RECORDED: Donnelly, Mansoor, Vacancy, Vacancy
JL:nld 9/11/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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