California Assembly Bill (“AB”) 403, the “Legislative Employee Whistleblower Protection Act,” imposes stiff consequences on Members of the Legislature or legislative employees who interfere with a legislative employee’s right to make a “protected disclosure.” The new law, effective February 5, 2018, is a direct response to allegations of misconduct among lawmakers and others in California’s legislative branch.
The widely publicized “#MeToo” movement likely was a catalyst for the new measures as well. Although AB 403 focuses on the Legislature itself, the lawmakers are considering a number of bills addressing similar subjects, which are applicable to all public and private sector employers in California. Even before new laws require changes, employers should strengthen anti-retaliation policies and procedures, and better facilitate internal reporting of – and responses to – claims of misconduct.
AB 403 is designed to protect legislative employees who in good faith report misconduct about a member or fellow employee. Misconduct includes violations of the law and or a legislative code of conduct. Although the impetus of the bill is sexual harassment prevention, the law’s protections apply to other forms of misconduct.
To obtain protection, legislative employees must disclose the misconduct in accordance with the California Fair Employment and Housing Act (i.e., by making a complaint), or by providing information to one or more of several other entities. These include the Senate or Assembly (or their respective Joint Committees on Rules or publicly identified designee (i.e., an ethics ombudsman)), a state or local law enforcement agency, a state agency authorized to investigate potential violations of state law, an individual within the employee’s chain of command, or a “legislative employee who has authority to investigate, discover, or correct the violation.” Expanding reporting options for employees should ameliorate the fear of reporting within one’s own department or chain of command. All employers should apply this principle to their own policies.
Interfering with Disclosure
AB 403 punishes Members or other employees who “interfere” with a legislative employee’s right to make a protected disclosure. Interference includes attempted or successful intimidation, threats, coercion, or commands, to prevent a legislative employee from making a protected disclosure. This definition of “interference” appears to expand the traditional definitions of “retaliation,” which ordinary require an adverse employment action.
The new law also imposes serious consequences against those individuals who interfere. There is the potential for criminal liability, including a fine of up to $10,000 and imprisonment for up to one year for Members or employees who use their authority or influence to interfere with a legislative employee’s right to make a protected disclosure. In addition, individuals or entities that interfere may incur personal liability for civil damages.
The new law also modifies “retaliation” standards as defined in other laws and court decisions. AB 403 prohibits “any action that would dissuade a reasonable individual from making or supporting a protected disclosure … or taking any similarly improper action against a legislative employee who makes a protected disclosure.” This definition in great part codifies adverse action definitions adopted by the California courts and the Equal Employment Opportunity Commission. However, the definition overlaps with the “interference” definition, which may result in confusion.
The more significant changes involve the burden of proof. The Legislature borrowed the standards contained in the California Whistleblower Protection Act, which applies to all employers. So, the employee first must demonstrate it is more likely than not that a protected disclosure was a contributing factor to an employment decision alleged to be retaliatory. Then, the burden shifts to the defendant to show by “clear and convincing evidence” that the action would have occurred for legitimate reasons unrelated to retaliation. This standard is tougher than existing law, such as the Fair Employment and Housing Act.
AB 403 imposes identical fines and imprisonment, as well as the possibility of civil liability, for a Member or employee who retaliates against a legislative employee for making a protected disclosure.
The “#MeToo” movement should focus attention on the importance of anti-retaliation and pro-reporting policies in the workplace. AB 403 appears to be drafted to address these issues as applied to the Legislature. But private and public sector employers also should take note.
As stated, ensuring employees have options to report misconduct is important. Directing all employees to “HR” or to one manager has not been effective. Employers may make use of technology, such as reporting via intranet or via anonymous emails. There are third-party organizations that receive “hotline” complaints, and more. It is critically important to ensure managers authorized to receive complaints are trained how to respond.
The second key issue is retaliation. Even after “#MeToo,” employees fear reprisals for speaking up. Severe punishment for retaliation may influence those who retaliate, but it is at least as important to convince employees their good faith reports are important and will not lead to reprisals. For this to occur, senior management must set the tone by ensuring those who undermine anti-retaliation policies are re-trained or disciplined.
Many employers address retaliation only in the context of equal employment opportunity or anti-harassment policies. Re-drafting anti-retaliation policies and procedures to emphasize the importance of reporting misconduct – whether related to sexual harassment or other violations of policy or law – is another positive step. As stated, AB 403 protects employees who report misconduct that involves any violation of law or legislative codes of conduct, not just harassment or discrimination.
Lastly, consequences are important, and so are consistency and transparency. The subjects of the publicly-aired #MeToo” scandals most often were important media players or celebrities. An organization that applies different standards to its most valued workers perpetuates cynicism about anti-retaliation and reporting policies. Employers should consider both the tangible and intangible costs of exempting powerful managers and talented workers from requirements that apply to employees generally.