Digest: (1) The California Whistleblower Protection Act authorizes a state employee or an applicant for state employment to file a complaint, as specified, with the State Personnel Board alleging reprisal, retaliation, threats, coercion, or similar improper conduct prohibited under the act. This bill would in addition provide that the act applies to former employees, as specified, and prohibits retaliation in the form of decreasing the job responsibilities of an employees normal workload. (2) Existing law provides that in addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or applicant for state employment for having made a protected disclosure is liable in an action for damages brought against him or her by theinjured party. However, any action for damages is not available to the injured party unless the injured party has first filed a complaint with the State Personnel Board, as specified, and the board has issued, or failed to issue, findings, as specified. This bill would instead eliminate the requirement that the board issue or fail to issue specified findings before an action for damages is authorized. Protected disclosure would be defined to mean any good faith communication, including any communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence an improper governmental activity or any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was for the purpose of remedying that condition. (3) Existing law provides that in any civil actionor administrative proceeding, once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof is on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee has a complete affirmative defense in the adverse action. This bill would instead provide that in an adverse action taken against an employee in which the employee demonstrates, by apreponderance of the evidence, that retaliation was a contributing factor to the adverse action taken against him or her, the employee shall have a complete affirmative defense to the adverse action. This bill would also require the administrative law judge in an administrative action filed on or after January 1, 2009, to make a finding, after the plaintiff has completed presenting the evidence in his or her case in chief, of whether the plaintiff demonstrated by a preponderance of evidence that an activity protected by the California Whistleblower Protection Act was a contributing factor in the alleged retaliation against the complainant. The burden of proof would then shift to the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. (4) Existing law requires the State Personnel Board to initiate a hearing or investigation of a written complaint of reprisal or retaliation that is prohibited by the California Whistleblower Protection Act within 10 working days of its submission. The executive officer is required to complete findings of the hearing or investigation within 60 working days thereafter and provide a copy of the findings to the complaining state employee or applicant for state employment and to the appropriate supervisor, manager, employee, or appointing authority. Within 60 days after receiving notification regarding a prohibited act, the appointing power must either serve notice of adverse action, as specified, or set forth in writing its reasons for not doing so. Existing law permits the supervisor, manager, employee, or appointing power to request a hearing before the State Personnel Board regarding the findings of the executive officer if the executive officerfinds that the supervisor, manager, employee, or appointing power retaliated against the complainant for engaging in protected whistleblower activities. Existing law provides that every person who violates these provisions is guilty of a misdemeanor. This bill would instead require the board, within 10 working days of receipt of a whistleblower retaliation complaint, to schedule the matter for an evidentiary hearing before an administrative law judge, as specified. Because a violation of these provisions would be a crime, the bill would impose a state-mandated local program. (5) Existing law provides that if, after the hearing described in (4) above, the State Personnel Board determines that a violation of the California Whistleblower Protection Act occurred, or if no hearing is requested and the findings of the executive officer conclude that improper activity has occurred, the board may order anyappropriate relief. This bill would specify that appropriate relief may include reasonable attorneys fees and costs for successful prosecution of a retaliation complaint before the board, and, at the employees request and with the employees consent, transfer to or placement in any vacant position for which the employee is qualified. (6) Existing law requires the board, whenever it determines that a manager, supervisor, or employee, who is not named a party to the retaliation complaint, may have engaged in or participated in any act prohibited by these provisions, to notify the managers, supervisors, or employees appointing power of that fact in writing. Within 60 days after receiving the notification, the appointing power is required to either serve a notice of adverse action on the manager, supervisor, or employee, or set forth in writing its reasons for not taking adverse action against themanager, supervisor, or employee. This bill would extend the timeframe within which the appointing power must take action, as specified, from 60 days to 4 months. (7) Existing law requires a public entity that provides for the defense of a state employee charged with a violation of the California Whistleblower Protection Act to reserve all rights to be reimbursed for any costs incurred in that defense. If a state employee is found to have violated the act, he or she is liable for all defense costs and is required to reimburse the public entity for those costs. This bill would provide that if a state employee is successful in an action brought before the board pursuant to those provisions, the complaining employee shall be reimbursed for all costs incurred, including reasonable attorneys fees. This bill would alsorequire the administrative law judge to make any orders that may appear just in order to prevent any named party from being embarrassed, delayed, or put to unnecessary expense, and may make other orders as the interests of justice may require during the administrative hearing, in all cases. The bill would also make technical, conforming changes to those provisions. (8) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. »
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Version: Enrolled
Bill language:
