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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
S1370
|||| 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