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S1370.......................................by COMMERCE AND HUMAN RESOURCES EMPLOYEE - WHISTLEBLOWER - Amends existing law to provide that an employer may take an adverse action against an employee if the employer has first obtained and delivered to the employee a written opinion from the employer's legal counsel to the effect that the employer's directive is lawful and the employer has given the employee a reasonable period of time to comply with the directive; and to provide that remedies under the "whistleblower law" are the sole and exclusive remedies for an employee. 02/04 Senate intro - 1st rdg - to printing 02/07 Rpt prt - to Com/HuRes
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000 IN THE SENATE SENATE BILL NO. 1370 BY COMMERCE AND HUMAN RESOURCES COMMITTEE 1 AN ACT 2 RELATING TO THE WHISTLEBLOWER LAW; AMENDING SECTION 6-2104, IDAHO CODE, TO 3 PROVIDE THAT AN EMPLOYER MAY TAKE AN ADVERSE ACTION AGAINST AN EMPLOYEE IF 4 THE EMPLOYER HAS FIRST OBTAINED A WRITTEN OPINION FROM THE EMPLOYER'S 5 LEGAL COUNSEL TO THE EFFECT THAT THE EMPLOYER'S DIRECTIVE IS LAWFUL AND 6 THE EMPLOYER HAS DELIVERED THE OPINION TO THE EMPLOYEE AND HAS GIVEN THE 7 EMPLOYEE A REASONABLE PERIOD OF TIME TO COMPLY WITH THE DIRECTIVE AND TO 8 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 6-2105, IDAHO CODE, TO PRO- 9 VIDE FOR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM BASED UPON AN ADVERSE 10 ACTION FOR WHICH A REMEDY IS PROVIDED UNDER THE WHISTLEBLOWER LAW INCLUD- 11 ING, BUT NOT LIMITED TO, ANY CLAIM THAT THE EMPLOYER'S ACTIONS VIOLATE 12 PUBLIC POLICY; AND PROVIDING AN EFFECTIVE DATE. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 6-2104, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 6-2104. REPORTING OF GOVERNMENTAL WASTE OR VIOLATION OF LAW -- EMPLOYER 17 ACTION. 18 (1) (a) An employer may not take adverse action against an employee 19 because the employee, or a person authorized to act on behalf of the 20 employee, communicates in good faith the existence of any waste of public 21 funds, property or manpower, or a violation or suspected violation of a 22 law, rule or regulation adopted under the laws of this state, a political 23 subdivision of this state or the United States. Such communication shall 24 be made at a time and in a manner which gives the employer reasonable 25 opportunity to correct the waste or violation. 26 (b) For purposes of subsection (1)(a) of this section, an employee commu- 27 nicates in good faith if there is a reasonable basis in fact for the com- 28 munication. Good faith is lacking where the employee knew or reasonably 29 ought to have known that the report is malicious, false or frivolous. 30 (2) An employer may not take adverse action against an employee because 31 an employee participates or gives information in an investigation, hearing, 32 court proceeding, legislative or other inquiry, or other form of administra- 33 tive review. 34 (3) An employer may not take adverse action against an employee because 35 the employee has objected to or refused to carry out a directive that the 36 employee reasonably believes violates a law or a rule or regulation adopted 37 under the authority of the laws of this state, political subdivision of this 38 state or the United States, unless prior to taking such action, the employer 39 has first obtained a written opinion from the employer's legal counsel to the 40 effect that the employer's directive is lawful and the employer has delivered 41 such opinion to the employee and has given the employee a reasonable period of 42 time to comply with the directive. 43 (4) An employer may not implement rules or policies that unreasonably 2 1 restrict an employee's ability to document the existence of any waste of pub- 2 lic funds, property or manpower, or a violation, or suspected violation of any 3 laws, rules or regulations. 4 SECTION 2. That Section 6-2105, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 6-2105. REMEDIES FOR EMPLOYEE BRINGING ACTION -- PROOF REQUIRED. (1) As 7 used in this section, "damages" means damages for injury or loss caused by 8 each violation of this chapter, and includes court costs and reasonable attor- 9 neys' fees. 10 (2) An employee who alleges a violation of this chapter may bring a civil 11 action for appropriate injunctive relief or actual damages, or both, within 12 one hundred eighty (180) days after the occurrence of the alleged violation of 13 this chapter. 14 (3) An action begun under this section may be brought in the district 15 court for the county where the alleged violation occurred, the county where 16 the complainant resides, or the county where the person against whom the civil 17 complaint is filed resides or has his principal place of business. 18 (4) To prevail in an action brought under the authority of this section, 19 the employee shall establish, by a preponderance of the evidence, that the 20 employee has suffered an adverse action because the employee, or a person act- 21 ing on his behalf engaged or intended to engage in an activity protected under 22 section 6-2104, Idaho Code. 23 (5) The remedies set forth herein shall be the sole and exclusive reme- 24 dies for any claim based upon any adverse action for which a remedy is pro- 25 vided under the provisions hereof including, but not limited to, any claim 26 that the employer's actions violate public policy. 27 SECTION 3. This act shall be in full force and effect on and after July 28 1, 2000.
STATEMENT OF PURPOSE RS 09711 The purpose of this bill is to avoid litigation when disputes arise between a public employer and a public employee regarding the legality of the employer's directive. Under current law, there is no dispute resolution procedure short of litigation whenever the legality of an employer's actions is called into question by an employee. Under such circumstances, an employee is forced to refuse to obey the directive, thus putting his or her job at risk, and if the employer disagrees, it is forced to terminate the employee's job, thereby risking a wrongful termination lawsuit. This bill will eliminate that dilemma and will provide a vehicle for placing the burden of determining the legality of a public employee's actions upon its legal counsel rather than upon its employees. The bill will also eliminate inconsistencies between common law remedies for wrongful termination and statutory remedies for employees working in the public sector. FISCAL IMPACT No adverse fiscal impact is anticipated. To the contrary, the bill should reduce litigation costs for public employers and employees by clarifying existing law and by providing a means to resolve disputes short of litigation. Contact Name: Ken Harward, Association of Idaho Cities Phone: (208) 344-8594 Name: Senator Grant Ipsen Phone: (208)334-1326 STATEMENT OF PURPOSE/FISCAL NOTE S1370