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SB-89 Retaliation.(2001-2002)

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SB89:v97#DOCUMENT

Amended  IN  Senate  August 20, 2001
Amended  IN  Senate  August 28, 2001

CALIFORNIA LEGISLATURE— 2001–2002 2nd Ext.

Senate Bill
No. 89

Introduced  by  Senator Figueroa, Murray, Scott
 (Coauthor(s): Senator Kuehl, Romero)
 (Coauthor(s): Assembly Member Alquist, Chu, Kehoe)

June 28, 2001

An act to add and repeal Chapter 5.5 (commencing with Section 1108) of Part 3 of Division 2 to the Labor Code, relating to retaliation, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 89, as amended, Figueroa. Retaliation.
Existing law, commonly referred to as the “whistle blower’s statute,” prohibits employers from retaliating against employees who, with reasonable cause, disclose information about the employer’s violation of state or federal law and from establishing policies that prevent employees from disclosing violations of law. Existing law imposes penalties against employers who violate those provisions.
This bill would expand existing law to prohibit employers from retaliating against employees, independent contractors, or agents of persons or businesses engaged in the electricity or electricity ancillary services market who, with reasonable cause, disclose to specified entities information about a possible fraud, false claim, anti-competitive practice, unlawful market manipulation or violation of state or federal law or from establishing policies that prevent individuals from disclosing that information. By making violations of its provisions a felony misdemeanor, the bill would impose a state-mandated local program.
This bill would make these provisions operative until March 31, 2003, and would repeal them on that date, unless a later enacted statute deletes or extends that date. 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.
The bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 5.5 (commencing with Section 1108) is added to Part 3 of Division 2 of the Labor Code, to read:
CHAPTER  5.5. Retaliation

1108.
 (a) An employer may not make, adopt, or enforce any rule, regulation, or policy, or engage in any conduct preventing or impeding an employee, independent contractor, or agent of any person or firm, corporation, or business that buys, sells, or schedules electricity in the California electricity or ancillary services market from disclosing information to the Legislature or any committee or member thereof, or to any government or law enforcement agency or employee thereof, where the employee, independent contractor, or agent has a reasonable basis to believe that the information reveals a possible fraud, false claim, anti-competitive practice, unlawful market manipulation, misrepresentation to a regulatory agency, or a violation of state or federal law or regulation.
(b) An employer may not layoff, discharge, demote, suspend, threaten, or in any other manner discriminate or retaliate against an employee, independent contractor, or agent of any person, firm, corporation, or business that buys, sells, or schedules electricity in the California electricity or ancillary services market because the employee, independent contractor, or agent has, with reasonable cause, disclosed information about a possible fraud, false claim, anti-competitive practice, unlawful market manipulation, or violation of state or federal law to the Legislature or any committee or member thereof, any government or law enforcement agency or commission or employee thereof, or any member of the executive branch, board, the Independent System Operator, or the media, or because the employee, independent contractor, or agent has filed a civil lawsuit containing allegations of fraud, false claims, anti-competitive practices, or unlawful market manipulation, or is required by law to disclose such information through testimony at a deposition or similar proceeding.
(c) Upon the determination by a mediator, arbitrator, or judge, or upon a finding at any administrative or judicial proceeding that an employer has violated subdivision (a) or (b), the prevailing plaintiff shall be entitled to all of the following damages:
(1) Immediate reinstatement to his or her position at the same rate of compensation and with the same benefits that the prevailing plaintiff was earning at the time he or she disclosed information and immediate removal of any adverse comments related to the prevailing plaintiff’s discharge, demotion, suspension, or layoff from all of the prevailing plaintiff’s personnel files.
(2) An amount equal to two times the prevailing plaintiff’s actual lost wages and benefits.
(3) Reasonable attorneys’ fees, including a lodestar enhancement reflecting the risk of initiating and litigating the action in an amount to be determined by the decisionmaker, plus costs allowable pursuant to Section 1033.5 of the Code of Civil Procedure.
(4) Punitive damages pursuant to Section 3294 of the Civil Code.
(d) As used in this section, “prevailing plaintiff” includes, but is not limited to, an employee, independent contractor, or agent who, through settlement or as a consequence of filing a lawsuit, obtains a change in a defendant’s policy, rule, or practice, regardless of the amount of actual damages awarded in the action.

1109.
 An employer or other person acting either individually or as an officer, agent, or employee of another person, firm, corporation, or business that buys, sells, or schedules electricity in the California electricity or ancillary services market who violates subdivision (a) or (b) of Section 1108 is guilty of a felony misdemeanor.

SEC. 2.

 This chapter shall remain in effect until March 31, 2003, and as of such that date is repealed, unless a later enacted statute, which is chaptered before January 1, 2003, deletes or extends that date.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
California’s energy market is in a state of crisis and ratepayers are struggling to pay skyrocketing energy bills. In order to facilitate investigations into the energy market and determine the causes of California’s current state of emergency, individual employees who have relevant information must be permitted to disclose that information without fear of retaliation.