Bill Text: AZ HB2316 | 2010 | Forty-ninth Legislature 2nd Regular | Introduced
Bill Title: Whistleblower protections; financial employees
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2010-01-26 - Referred to House BI Committee [HB2316 Detail]
Download: Arizona-2010-HB2316-Introduced.html
CORRECTED Jan 21 2010
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REFERENCE TITLE: whistleblower protections; financial employees |
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State of Arizona House of Representatives Forty-ninth Legislature Second Regular Session 2010
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HB 2316 |
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Introduced by Representatives Patterson: Campbell CH, Campbell CL
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AN ACT
amending title 6, Arizona Revised Statutes, by adding chapter 16; relating to discharge of or discrimination against financial institution employees.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 6, Arizona Revised Statutes, is amended by adding chapter 16, to read:
CHAPTER 16
DISCHARGE OF OR DISCRIMINATION AGAINST FINANCIAL INSTITUTION EMPLOYEES
ARTICLE 1. GENERAL PROVISIONS
6-1601. Employee discharge or discrimination; prohibition; complaint; preliminary order; hearing; final order; damages; definition
A. A financial institution shall not terminate or in any other way discriminate against, or cause to be terminated or discriminated against, any employee or any authorized representative of an employee because the employee or representative whether at the employee's initiative or in the ordinary course of the employee's duties, or any person acting pursuant to a request of the employee, has done any of the following:
1. Provided information to any state, local, federal or tribal government entity.
2. Filed, instituted or caused to be filed or instituted any proceeding under this title or any enumerated consumer law or has testified or is about to testify in any proceeding resulting from the administration or enforcement of this title.
3. Objected to or refused to participate in any activity, policy, practice or assigned task that the employee or other person reasonably believed to be in violation of any law, rule or regulation or to be unfair, deceptive or abusive and likely to cause specific and substantial injury to one or more consumers.
B. A person who believes that the person has been discharged or otherwise discriminated against by any other person in violation of subsection a may file, not later than one hundred eighty days after the date on which the violation occurs, or have any other person file on the person's behalf, a complaint with the industrial commission of Arizona alleging the discharge or discrimination and identifying the person responsible for the discharge or discrimination. On receipt of a complaint, the director shall notify in writing the person named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint and of the opportunities that will be afforded to the person under subsection C.
C. Not later than sixty days after the date of receipt of a complaint filed under subsection B and after affording the complainant and the person named in the complaint an opportunity to submit to the director a written response to the complaint and an opportunity to meet with a representative of the director to present statements from witnesses, the director shall initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify in writing the complainant and the person alleged to have committed a violation of subsection a of the findings of the director. If the director concludes that there is reasonable cause to believe that a violation of subsection a has occurred, the director shall issue with the findings a preliminary order providing the relief prescribed by subsection I. Not later than thirty days after the date of notification of findings under this subsection, either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record. The filing of the objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any hearing shall be conducted expeditiously. If a hearing is not requested in the thirty day period, the preliminary order shall be deemed a final order that is not subject to judicial review.
D. The director shall dismiss a complaint filed under this section and shall not conduct an investigation otherwise required under subsection C unless the complainant makes a prima facie showing that any behavior described in subsection a was a contributing factor in the unfavorable personnel action alleged in the complaint.
E. Notwithstanding a finding by the director that the complainant has made the showing required under subsection D, an investigation otherwise required under subsection C shall not be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.
F. The director may determine that a violation of subsection A has occurred only if the complainant demonstrates that any behavior described in subsection A is a contributing factor in the unfavorable personnel action alleged in the complaint.
G. Relief may not be ordered if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.
H. Not later than one hundred twenty days after the date of conclusion of any hearing pursuant to subsection C, the director shall issue a final order providing the relief prescribed by this section or denying the complaint. At any time before issuance of a final order, a proceeding under this section may be terminated on the basis of a settlement agreement entered into by the director, the complainant and the person alleged to have committed the violation.
I. In response to a complaint filed under subsection B, if the director determines that a violation of subsection A has occurred, the director shall order the person who committed the violation to do all of the following:
1. Take affirmative action to abate the violation.
2. Reinstate the complainant to the complainant's former position with compensation, including back pay, and restore the terms, conditions and privileges associated with the employment.
3. Provide compensatory damages to the complainant.
J. If an order is issued under subsection I, at the request of the complainant the director shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses, including attorney fees and expert witness fees that are reasonably incurred, as determined by the director, by the complainant for, or in connection with, the bringing of the complaint on which the order was issued.
K. If the director finds that a complaint under subsection B is frivolous or has been brought in bad faith, the director may award to the prevailing employer reasonable attorney fees, not exceeding one thousand dollars, to be paid by the complainant.
L. If the director has not issued a final decision within two hundred ten days after the filing of the complaint, or within ninety days after receiving a written determination, the complainant may bring an action at law or equity for de novo review in superior court. At the request of either party to the action, The action shall be tried by the court with a jury. The proceedings shall be governed by the same legal burdens of proof specified in subsection C. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including all of the following:
1. Reinstatement with the same seniority status that the employee would have had but for the discharge or discrimination.
2. The amount of back pay, with interest.
3. Compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees and reasonable attorney fees.
M. Unless the complainant brings an action under subsection L, any person adversely affected or aggrieved by a final order issued under subsection H may obtain review of the order in superior court. The petition for review must be filed not later than sixty days after the date of the issuance of the final order of the director. Unless ordered by the court, the commencement of proceedings under this subsection shall not operate as a stay of the order.
N. An order of the director with respect to which review could have been obtained under subsection M shall not be subject to judicial review in any criminal or other civil proceeding.
O. If a person has failed to comply with an order issued under subsection H, the director may file a civil action in the superior court in the county in which the violation was found to occur to enforce the order. In actions brought under this subsection, the courts shall have jurisdiction to grant all appropriate relief, including injunctive relief and compensatory damages.
P. A person on whose behalf an order was issued under subsection H may commence a civil action against the person to whom the order was issued to require compliance with the order.
Q. In issuing any final order under this section, the court may award costs of litigation, including reasonable attorney fees and expert witness fees, to any party if the court determines the award is appropriate.
R. Any nondiscretionary duty imposed by this section shall be enforceable in superior court.
S. For the purposes of this section, "director" means the director of the industrial commission of Arizona.
6-1602. Waiver of rights and remedies
Except as provided under section 6‑1601, subsection H, the rights and remedies provided for in this chapter may not be waived by any agreement, policy, form or condition of employment, including by any predispute arbitration agreement.
6-1603. Predispute arbitration agreements
Except as provided under section 6‑1601, subsection H, a predispute arbitration agreement shall not be valid or enforceable if it requires arbitration of a dispute arising under this chapter.
6-1604. Exception for collective bargaining agreements
Notwithstanding sections 6‑1602 and 6‑1603, an arbitration provision in a collective bargaining agreement shall be enforceable as to disputes arising under section 6‑1601, subsection A, paragraph 3 unless the industrial commission of Arizona determines by rule that the provision is inconsistent with the purposes of this chapter.
6-1605. Requirement to post notice of rights and remedies
Any employer regulated by this title shall post notice of the rights and remedies provided under this chapter.
