PRINTER'S NO. 3580
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2892
Session of
2022
INTRODUCED BY PISCIOTTANO, HOHENSTEIN, HILL-EVANS, D. WILLIAMS,
WELBY, HANBIDGE, BURGOS, BROOKS, A. DAVIS, SCHLOSSBERG,
SANCHEZ, KRAJEWSKI, KINKEAD, ROZZI, KIM, ABNEY, A. BROWN,
GUENST, KINSEY, WEBSTER, T. DAVIS, MATZIE, N. NELSON, CIRESI,
MADDEN, INNAMORATO AND DELLOSO, OCTOBER 21, 2022
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, OCTOBER 21, 2022
AN ACT
Amending Title 43 (Labor) of the Pennsylvania Consolidated
Statutes, providing for preliminary provisions and for labor
protections.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 43 of the Pennsylvania Consolidated
Statutes is amended by adding parts to read:
PART I
PRELIMINARY PROVISIONS
Chapter
1. General Provisions
CHAPTER 1
GENERAL PROVISIONS
Sec.
101. Scope of title.
102. Definitions.
§ 101. Scope of title.
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This title relates to labor.
§ 102. Definitions.
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions under this title, the following words and phrases
when used in this title shall have the meanings given to them in
this section unless the context clearly indicates otherwise:
"Department." The Department of Labor and Industry of the
Commonwealth.
PART II
LABOR PROTECTIONS
Chapter
11. Preliminary Provisions
13. Whistleblower Protections
CHAPTER 11
PRELIMINARY PROVISIONS
Sec.
1101. Scope of part.
§ 1101. Scope of part.
This part relates to labor protections.
CHAPTER 13
WHISTLEBLOWER PROTECTIONS
Sec.
1301. Scope of chapter.
1302. Purpose.
1303. Definitions.
1304. Employee protections.
1305. Civil action and enforcement.
1306. Relief.
1307. Notice.
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1308. Construction.
§ 1301. Scope of chapter.
This chapter relates to whistleblower protections.
§ 1302. Purpose.
The purpose of this chapter is to ensure that each employee
is able to raise concerns about workplace conditions that
violate the law or present an immediate and substantial risk to
health and safety without fear of retaliation or dismissal.
§ 1303. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Appropriate authority." As follows:
(1) Any of the following:
(i) A Federal, State or local government body,
agency or organization having jurisdiction over criminal
law enforcement, regulatory violations, waste or
professional conduct or ethics.
(ii) A member, officer, agent, representative or
supervisory employee of the body, agency or organization
under subparagraph (i).
(2) The term includes:
(i) The Office of Inspector General.
(ii) The Office of Attorney General.
(iii) The Department of the Auditor General.
(iv) The Treasury Department.
(v) The General Assembly and committees of the
General Assembly having the power and duty to investigate
criminal law enforcement, regulatory violations, waste or
professional conduct or ethics.
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"Commonwealth agency." A department, agency, division,
bureau, board, commission, council, authority, office or other
body or officer of the executive branch under the policy
supervision and control of the Governor.
"Employee." As follows:
(1) A person who performs a service for wages or other
remuneration under a contract of hire, written or oral,
express or implied, for an employer.
(2) The term includes:
(i) A former employee.
(ii) A prospective employee.
"Employer." Any of the following:
(1) A public body.
(2) Any of the following that receives money from a
public body to perform work or provide services relative to
the performance of work for or the provision of services to a
public body:
(i) An individual.
(ii) A partnership.
(iii) An association.
(iv) A corporation for profit.
(v) A corporation not for profit.
(vi) Any other business entity.
(3) An individual or a private entity that has any of
the following characteristics:
(i) Is located in this Commonwealth and employs an
individual who is a resident of this Commonwealth.
(ii) Is located in this Commonwealth and employs an
individual who is not a resident of this Commonwealth.
(iii) Is located outside this Commonwealth and
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employs an individual who is a resident of this
Commonwealth.
"Good faith report." As follows:
(1) A report of conduct defined in this chapter as
wrongdoing or waste, which is made without malice or
consideration of personal benefit and which the person making
the report has reasonable cause to believe is true.
(2) An employer is not barred from taking disciplinary
action against the employee who completed the report if the
employee's report was submitted in bad faith.
"Illegal or dangerous business activity." A practice,
procedure, action or failure to act by an employer, or an
employee or agent of the employer, taken in the course of the
employer's business, whether or not within the scope of
employment or agency, that:
(1) is in violation of a law, rule or regulation; or
(2) creates and presents a substantial and specific
danger to the public health or safety.
"Independent agency." As follows:
(1) A department, agency, division, bureau, board,
commission, council, authority, office or other body or
officer of the Commonwealth that is not under the policy
supervision or control of the Governor.
(2) The term does not include:
(i) A court or agency of the unified judicial
system.
(ii) The General Assembly or an agency of the
General Assembly.
"Independent department." Any of the following:
(1) The Department of the Auditor General.
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(2) The Treasury Department.
(3) The Office of Attorney General.
(4) The office of Lieutenant Governor.
(5) A board, commission or other instrumentality of an
entity under paragraph (1), (2), (3) or (4).
"Public body." Any of the following:
(1) A Commonwealth agency.
(2) An independent department.
(3) An independent agency.
(4) A court or agency of the unified judicial system.
(5) The General Assembly or an agency of the General
Assembly.
(6) As follows:
(i) A county, city, borough, incorporated town,
township, regional governing body, council, school
district, special district or municipal corporation.
(ii) A board, department, commission, council,
agency, division, bureau, office, committee or other
instrumentality of an entity under subparagraph (i).
(7) As follows:
(i) A State or local regulatory, administrative or
public agency or authority.
(ii) An instrumentality of an entity under
subparagraph (i).
(8) As follows:
(i) A State or local law enforcement agency,
prosecutorial office or police or peace officer.
(ii) An instrumentality of an entity under
subparagraph (i).
(9) As follows:
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(i) Any other body that is created by Commonwealth
or political subdivision authority or that is funded in
any amount through Commonwealth or political subdivision
authority.
(ii) A member or employee of the body under
subparagraph (i).
"Waste." An employer's conduct or omission that results in
substantial abuse, misuse, destruction or loss of money or
resources belonging to or derived from Commonwealth or political
subdivision sources.
"Whistleblower." Any of the following:
(1) A person who witnesses or has evidence of wrongdoing
or waste while employed and who makes a good faith report of
the wrongdoing or waste, verbally or in writing, to one of
the person's superiors, to an agent of the employer or to an
appropriate authority.
(2) An employee who is otherwise protected by the
provisions of this chapter.
"Wrongdoing." A violation that is not of a merely technical
or minimal nature of a Federal or State statute or regulation,
of a political subdivision ordinance or regulation or of a code
of conduct or ethics designed to protect the interest of the
public or the employer.
§ 1304. Employee protections.
(a) Prohibitions.--An employer may not discharge, demote,
threaten, refuse to hire, discriminate against, retaliate
against or take any other adverse action against an employee
regarding the employee's compensation, terms, conditions,
location or privileges of employment because the employee, or a
person acting on behalf of the employee, has done any of the
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following:
(1) Makes a good faith report, or is about to report,
verbally or in writing, to the employer or appropriate
authority an instance of:
(i) wrongdoing or waste by a public body; or
(ii) waste by another employer.
(2) Discloses to a supervisor or a public body or
expresses an intent to make a disclosure to a public body
regarding an illegal or dangerous business activity.
(3) Provides information to, or testifies before, a
public body conducting an investigation, hearing or inquiry
into an illegal or dangerous business activity or an activity
that endangers workplace or public safety or health or
otherwise at the request of the public body.
(4) Is requested by an appropriate authority to
participate in an investigation, hearing or inquiry held by
the appropriate authority or in a court action.
(5) Objects to, or refuses to participate in, an illegal
or dangerous business activity.
(b) Application.--The protection against retaliatory action
under subsection (a) regarding an illegal or dangerous business
activity shall apply to an employee who in good faith reasonably
believes that the illegal or dangerous business activity has
occurred or will occur, based on information that the employee
in good faith reasonably believes to be true.
(c) Disclosure prohibition.--An appropriate authority to
which a violation of this chapter was reported may not disclose
the identity of the whistleblower without the whistleblower's
consent, unless disclosure is unavoidable in the investigation
of the alleged violation.
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§ 1305. Civil action and enforcement.
(a) Civil action by employee.--An employee or other person
who has been the subject of an alleged violation of this chapter
may bring a civil action in a court of competent jurisdiction
for appropriate injunctive relief or damages, or both, within
two years after the alleged violation occurred.
(b) Other enforcement action.--The department or the
Attorney General may also bring an enforcement action for an
alleged violation of this chapter. The following apply:
(1) The enforcement action must be brought within two
years after the occurrence of the alleged violation of this
chapter.
(2) The enforcement action may seek the collection of
relief, including costs, disbursements and attorney fees in
accordance with paragraph (4).
(3) The department or the Attorney General shall not be
required to pay the filing fee or other costs in connection
with the enforcement action.
(4) If the department or the Attorney General prevails
in the enforcement action, the aggrieved party shall be
awarded damages and the Commonwealth shall be awarded
penalties and costs.
(c) Rebuttable presumption.--
(1) It shall be considered a rebuttable presumption of
retaliation if an employer takes an adverse action against an
employee within 180 days of the employee's exercise of rights
protected under this chapter.
(2) An employer may rebut the presumption under
paragraph (1) with clear and convincing evidence that the
adverse action was taken for a permissible purpose.
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(d) Evidence.--
(1) An employee alleging a violation of this chapter
involving wrongdoing or waste by a public body or waste by
another employer must show by a preponderance of the evidence
that, prior to the alleged reprisal, the employee or person
acting on behalf of the employee had reported or was about to
report in good faith, verbally or in writing, an instance of
wrongdoing or waste to the employer or an appropriate
authority.
(2) It shall be a defense to an action under paragraph
(1) if the defendant proves by a preponderance of the
evidence that the action taken by the employer occurred for
separate and legitimate reasons, which are not merely
pretextual.
(e) Venue.--An action authorized under this section may be
brought in the county in which:
(1) the alleged retaliatory action occurred;
(2) the complainant resides; or
(3) the employer has its principal place of business.
(f) Jury trial.--In the action brought under this section,
the parties shall be entitled to a jury trial.
(g) Civil service employees.--An employee covered by civil
service who contests a civil service action, believing it to be
motivated by having made a good faith report, verbally or in
writing, of an instance of wrongdoing or waste, may submit as
admissible evidence any materials relating to the action as
whistleblower and to the resulting alleged reprisal.
(h) Motivating factor.--Except as otherwise provided under
this section, a violation of this section is established when
the complainant demonstrates that a motivating factor for the
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retaliatory action violates subsection (c).
§ 1306. Relief.
(a) Authorization.--A court, in rendering a judgment in an
action brought under this chapter, shall order, as the court
considers appropriate, any of the following remedies:
(1) Either of the following:
(i) The reinstatement of the employee to the same
position held before the retaliatory action or to an
equivalent position.
(ii) Front pay in lieu of reinstatement.
(2) The payment of back wages, compensation or other
remuneration.
(3) The reinstatement of full fringe benefits, seniority
rights and any other previously existing rights.
(4) Actual damages.
(5) Compensatory damages relating to lost wages,
benefits and other economic loss and relating to emotional
distress.
(6) The payment of reasonable costs, disbursements and
attorney fees.
(7) An injunction to restrain the employer's continued
violation of this chapter.
(8) Liquidated damages up to $20,000.
(9) In an action brought by the department or the
Attorney General, a civil penalty of not less than $1,000 nor
more than $10,000, except that if the department or the
Attorney General finds that the employer has violated the
provisions of this chapter in the preceding six years, the
department or the Attorney General may assess a civil penalty
of not less than $1,000 nor more than $20,000.
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(10) Any combination of the remedies specified in this
subsection.
(b) Other damages.--In addition to the remedies under
subsection (a), a court shall also award the complainant all or
a portion of the costs of litigation, including reasonable
attorney fees and witness fees, if the complainant prevails in
the civil action.
(c) Agent of employer.-- A person who, under color of an
employer's authority, violates this chapter shall be liable for
a civil fine of not more than $10,000. The following apply:
(1) Except where the person holds an elected public
office, if the court specifically finds that the person,
while in the employment of the Commonwealth or a political
subdivision, committed a violation of this chapter with the
intent to discourage the disclosure of criminal activity, the
court may order the person's suspension from public service
for not more than seven years.
(2) A civil fine that is ordered under this section
shall be paid to the State Treasurer for deposit into the
General Fund.
(d) Existing rights.--Nothing under this section shall be
deemed to diminish the rights, privileges or remedies of an
employee under any other law or regulation or under any
collective bargaining agreement or employment contract.
§ 1307. Notice.
(a) Requirements.--Each employer shall post a notice of
employees' protections, rights and obligations under this
chapter. The notice shall be:
(1) posted conspicuously in easily accessible and well-
lighted places customarily frequented by employees and
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prospective employees; and
(2) written in legible form in English and in each
language commonly spoken among employees on the job site.
(b) Template.--The department shall provide template notices
on its publicly accessible Internet website for use by employers
in each language commonly spoken among employees in this
Commonwealth.
§ 1308. Construction.
This chapter shall not be construed to:
(1) require an employer to compensate an employee for
participation in an investigation, hearing or inquiry held by
an appropriate authority; or
(2) impair the rights of any person under a collective
bargaining agreement.
Section 2. Repeals are as follows:
(1) The General Assembly declares that the repeal under
paragraph (2) is necessary to effectuate the addition of 43
Pa.C.S. Pt. II.
(2) The act of December 12, 1986 (P.L.1559, No.169),
known as the Whistleblower Law, is repealed.
Section 3. Except as otherwise provided in 43 Pa.C.S. Pt.
II, all activities initiated under the act of December 12, 1986
(P.L.1559, No.169), known as the Whistleblower Law, shall
continue and remain in full force and effect and may be
completed under 43 Pa.C.S. Pt. II. Orders, regulations, rules
and decisions which were made under the Whistleblower Law and
which are in effect on the effective date of section 2 of this
act shall remain in full force and effect until revoked, vacated
or modified under 43 Pa.C.S. Pt. II. Contracts, obligations and
collective bargaining agreements entered into under the
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Whistleblower Law are not affected nor impaired by the repeal of
the Whistleblower Law.
Section 4. This act shall take effect in 60 days.
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