CHAPTER 340
SB 358-FN – FINAL VERSION
03/10/10 0912s
12May2010… 1913h
06/02/10 2203CofC
06/02/10 2425eba
2010 SESSION
05/10
SENATE BILL 358-FN
AN ACT relative to whistleblower protection and waste prevention in state government.
SPONSORS: Sen. Carson, Dist 14; Sen. Downing, Dist 22; Sen. Odell, Dist 8; Sen. Gallus, Dist 1; Rep. Quandt, Rock 13
COMMITTEE: Commerce, Labor and Consumer Protection
The bill expands the provisions of the whistleblower protection act to include employees who object to or refuse to participate in any activity that the employee believes is a violation of law. This bill also authorizes the labor commissioner to investigate allegations of fraud, abuse, or waste in the expenditure of public funds and adds additional protections to the whistleblower protection act for public employees who file such complaints.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/10/10 0912s
12May2010… 1913h
06/02/10 2203CofC
06/02/10 2425eba
10-2873
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to whistleblower protection and waste prevention in state government.
Be it Enacted by the Senate and House of Representatives in General Court convened:
340:1 New Subdivision; Whistleblowers’ Protection Act; Investigation by Department of Labor. Amend RSA 275-E by inserting after section 7 the following subdivision:
Public Employee Complaint Investigation Process
275-E:8 Complaint Investigation by Department of Labor.
I. The department of labor shall have the authority to receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, or abuse in the expenditure of any public funds, whether state or local, or relating to programs and operations involving the procurement of any supplies, services, or construction by governmental entities within the state.
II. The labor commissioner shall make an initial determination as to whether a complaint received under paragraph I is without merit, unfounded, or in need of further information, in which case, the complaint may be dismissed without further action, or held until such time as additional information is received, or dismissed if no further information is received within the time period specified by the commissioner. If the labor commissioner makes an initial determination that the complaint has merit and warrants further investigation, the labor commissioner may undertake such investigation or refer the matter to the appropriate enforcement authority. The identity of the person who filed the complaint shall not be disclosed without his or her written consent, unless such disclosure is to a law enforcement agency that is conducting a criminal investigation.
III. If the labor commissioner undertakes further investigation of the complaint, the commissioner shall have access to all records, confidential or otherwise, reports, audits, reviews, papers, books, documents, recommendations, and correspondence, including information or data that is deemed necessary by the commissioner to carry out the investigation. The labor commissioner may request such information, cooperation, and assistance from any state, county, or local governmental agency and may coordinate activities with the attorney general’s office. In carrying out his or her duties and responsibilities, the labor commissioner shall immediately report to the attorney general and either the United States Attorney or local enforcement agency any suspected violation of state or federal criminal law.
IV. No governmental entity shall take any retaliatory action against a public employee who, in good faith, files a complaint under this section and the public employee shall be afforded all protections under RSA 275-E:2.
V. The labor commissioner shall adopt rules under RSA 541-A relative to the complaint investigation process established in this section, including the administrative procedure used for responding to complaints, gathering additional information, and rendering decisions.
VI. For purposes of this subdivision, the labor commissioner shall include any person designated by the labor commissioner to carry out the investigation authorized by this section. Public employee shall mean any employee of a governmental entity, as defined in RSA 275-E:1, III.
275-E:9 Protection of Public Employees. No governmental entity shall threaten, discipline, demote, fire, transfer, reassign, or discriminate against a public employee who files a complaint with the department of labor under RSA 275-E:8 or otherwise discloses or threatens to disclose activities or information that the employee reasonably believes violates RSA 275-E:2, represents a gross mismanagement or waste of public funds, property, or manpower, or evidences an abuse of authority or a danger to the public health and safety. Notwithstanding this provision of law, public employers may discipline, demote, fire, transfer, or reassign an employee so long as the action is not arbitrary or capricious and is not in retaliation for the filing of a complaint under this chapter. Any public employee who files such a complaint or makes such a disclosure shall be entitled to all rights and remedies provided by this chapter.
340:2 Protection of Employees Reporting Violations. RSA 275-E:2 is repealed and reenacted to read as follows:
275-E:2 Protection of Employees Reporting Violations.
I. No employer shall harass, abuse, intimidate, discharge, threaten, or otherwise discriminate against any employee regarding compensation, terms, conditions, location, or privileges of employment because:
(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States; or
(b) The employee objects to or refuses to participate in any activity that the employee, in good faith, believes is a violation of the law; or
(c) The employee, in good faith, participates, verbally or in writing, in an investigation, hearing, or inquiry conducted by any governmental entity, including a court action, which concerns allegations that the employer has violated any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.
II. An aggrieved employee may bring a civil suit within 3 years of the alleged violation of this section. The court may order reinstatement and back-pay, as well as reasonable attorney fees and costs, to the prevailing party.
340:3 Effective Date. This act shall take effect upon its passage.
Approved: July 20, 2010
Effective Date: July 20, 2010