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SB-419 Legislature: Whistleblower protection and retaliation prevention.(2017-2018)

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Date Published: 10/01/2018 09:00 PM
SB419:v89#DOCUMENT

Senate Bill No. 419
CHAPTER 952

An act to amend Section 9149.32 of, and to add Article 12 (commencing with Section 9149.38) to Chapter 1.5 of Part 1 of Division 2 of Title 2 of, the Government Code, relating to the Legislature, and declaring the urgency thereof, to take effect immediately.

[ Approved by Governor  September 30, 2018. Filed with Secretary of State  September 30, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 419, Portantino. Legislature: Whistleblower protection and retaliation prevention.
Existing law, the Legislative Employee Whistleblower Protection Act, imposes criminal and civil liability on a Member of the Legislature or legislative employee, as defined, who interferes with, or retaliates against, a legislative employee’s exercise of the right to make a protected disclosure, which is defined as a good faith allegation made by a legislative employee to specified entities that a Member of the Legislature or a legislative employee has engaged in, or will engage in, activity that may constitute a violation of law or a violation of a legislative standard of conduct.
This bill would define “protected disclosure” for purposes of that act to also include a complaint made at the request of a legislative employee and a complaint made against a nonemployee in specified circumstances.
Existing law, the California Fair Employment and Housing Act (FEHA), protects and safeguards the right and opportunity of all persons to generally seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of enumerated protected categories. Existing law also precludes an employer, labor organization, employment agency, or person from discharging, expelling, or otherwise discriminating against any person because the person has opposed any practices forbidden under FEHA or because the person has filed a complaint, testified, or assisted in any FEHA proceeding.
Existing law, the Unruh Civil Rights Act, states that all people in California are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments, no matter their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Existing law establishes a cause of action for violations of that act. Existing law also separately establishes liability for sexual harassment if a plaintiff proves specified elements, including, among other things, that there is a business, service, or professional relationship between the plaintiff and defendant.
This bill would declare that neither house of the Legislature may retaliate against a legislative advocate or employee, as defined, because that person has opposed any practices forbidden under the above provisions, or filed a complaint, testified, or assisted in any proceeding relating to a complaint of harassment under those provisions. This bill would impose civil liability for a violation of that prohibition. This bill would also require each house of the Legislature to maintain a record of each harassment complaint made to that house for a period of at least 12 years after the complaint is made.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 9149.32 of the Government Code is amended to read:

9149.32.
 For the purposes of this article, the following terms have the following meanings:
(a) “Interfere” means to intimidate, threaten, coerce, or command, or attempt to intimidate, threaten, coerce, or command a legislative employee who attempts to make a protected disclosure.
(b) “Legislative employee” means an individual, other than a Member of either house of the Legislature, who is, or has been, employed by either house of the Legislature. “Legislative employee” includes volunteers, interns, fellows, and applicants.
(c) “Protected disclosure” means a communication that is both of the following:
(1) Made by a legislative employee in good faith alleging that any of the following engaged in, or will engage in, activity that may constitute a violation of any law, including sexual harassment, or of a legislative code of conduct:
(A) A Member of the Legislature.
(B) A legislative employee.
(C) A person who is neither a Member of the Legislature nor a legislative employee whose behavior affects a Member or legislative employee who is engaged in a work-related activity.
(2) Protected under the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) or made to any of the following entities:
(A) The Senate Committee on Rules, or its publicly identified designee.
(B) The Assembly Committee on Rules, or its publicly identified designee.
(C) The Joint Committee on Rules, or its publicly identified designee.
(D) A state or local law enforcement agency.
(E) A state agency authorized to investigate potential violations of state law.
(F) An individual with authority over the legislative employee, or another legislative employee who has authority to investigate, discover, or correct the violation or noncompliance.
(d) “Retaliate” means to take any action that would dissuade a reasonable individual from making or supporting a protected disclosure, including issuing a reprisal, threatening, coercing, or taking any similarly improper action against a legislative employee who makes a protected disclosure.
(e) “Use of official authority or influence” includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or taking, or directing others to take, or recommending, processing, or approving, any personnel action, including an appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action.

SEC. 2.

 Article 12 (commencing with Section 9149.38) is added to Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government Code, to read:
Article  12. Legislative Discriminatory Harassment Retaliation Prevention Act

9149.38.
 This article shall be known and may be cited as the Legislative Discriminatory Harassment Retaliation Prevention Act.

9149.39.
 For purposes of this article, the following terms have the following meanings:
(a) “Discriminatory harassment” means harassment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
(b) “Legislative advocate” means an individual whose activities include communicating directly or through his or her agent with a Member of the Legislature, or any officer or employee thereof, for the purpose of influencing legislative action.
(c) “Legislative employee” means an individual, other than a Member of the Legislature, who is, or has been, employed by either house of the Legislature. “Legislative employee” includes volunteers, interns, fellows, and applicants.

9149.40.
 (a) A house of the Legislature shall not discharge, expel, or otherwise discriminate against a legislative advocate or a legislative employee because that person has opposed any practices forbidden under the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3), opposed any practice actionable under Section 51 or 51.9 of the Civil Code, or filed a complaint, testified, or assisted in any proceeding relating to a complaint of discriminatory harassment made pursuant to those laws. A vote of the house or the deliberation of legislative matters within its jurisdiction shall not be considered an act to discharge, expel, or otherwise discriminate against a legislative advocate or a legislative employee for purposes of this subdivision.
(b) A violation of this section is subject to a fine not to exceed ten thousand dollars ($10,000).
(c) This article does not limit either of the following:
(1) The application of any other rights or remedies under federal or state law.
(2) The authority conferred upon the Attorney General, any state or federal law enforcement agency, or any other commission, department, or agency authorized to investigate the Legislature.
(d) The civil fine imposed under this article is in addition to those provided by any other federal or state law, including Section 1102.5 of the Labor Code and the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code).

9149.41.
 Each house of the Legislature shall implement a system to maintain a record of each discriminatory harassment complaint made to that house for a period of at least 12 years after the complaint is made.

SEC. 3.

 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 California Constitution and shall go into immediate effect. The facts constituting the necessity are:
To enable victims and witnesses of discriminatory harassment to come forward as soon as possible without fear of retaliation, it is necessary that this bill take effect immediately.