46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO EMPLOYMENT; ENACTING THE WHISTLEBLOWER PROTECTION ACT; PROHIBITING EMPLOYER RETALIATORY ACTION AGAINST EMPLOYEES IN CERTAIN CIRCUMSTANCES; PROVIDING FOR GRIEVANCE PROCEDURES AND PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the

"Whistleblower Protection Act".

Section 2. PURPOSE.--It is the purpose of the Whistleblower Protection Act to encourage employees to notify the appropriate persons of illegal acts of public concern. This reporting is encouraged in order to protect the public and employees and to assist public bodies charged with ensuring adequate safety and health standards.

Section 3. DEFINITIONS.--As used in the Whistleblower Protection Act:

A. "blacklisting" means informing others that a person acted in a manner that is protected by the Whistleblower Protection Act and intending to hinder that person's ability to obtain employment;

B. "commission" means the human rights commission;

C. "director" means the director of the division;

D. "division" means the human rights division of the labor department;

E. "employee" means a person who performs services for and under the control and direction of an employer for wages or other remuneration;

F. "employer" means a person who has four or more employees and includes an agent of an employer and a public employer;

G. "improper act" means a practice, procedure, action or failure to act on the part of an employer that is of public concern and violates a state or federal law, federal regulation or state administrative rule;

H. "public body" means a state government department, agency or political subdivision;

I. "retaliatory action" means blacklisting or the discharge, suspension, demotion, disciplining or any discriminatory or adverse employment action against an employee in the terms and conditions of employment; and

J. "secretary" means the secretary of labor.

Section 4. EMPLOYER RETALIATORY ACTION PROHIBITED.--An employer shall not take any retaliatory action against an employee because the employee:

A. discloses, or threatens to disclose, to an employer or to a private or public body an activity, policy or practice of the employer that constitutes an improper act or that the employee believes in good faith constitutes an improper act;

B. provides information to, or testifies before, a public body as part of an investigation, hearing or inquiry into an improper act; or

C. objects to or refuses to participate in an activity, policy or practice that constitutes an improper act. Section 5. BLACKLISTING PROHIBITED.--An employer shall not blacklist a current or former employee.

Section 6. GRIEVANCE PROCEDURE.--

A. An employee claiming to be subject to a retaliatory action prohibited by the Whistleblower Protection Act may file with the division a written complaint that shall state the name and address of the person alleged to have engaged in the retaliatory action, all information relating to the retaliatory action and any other information that may be required by the commission. All complaints shall be filed with the division within one hundred eighty days after the alleged retaliatory action was committed.

B. The director shall advise the respondent that a complaint has been filed against him and shall furnish him with a copy of the complaint. The director shall promptly investigate the alleged retaliatory action. If the director determines that the complaint lacks probable cause, the director shall dismiss the complaint and notify the complainant and respondent of the dismissal. The complaint shall be dismissed subject to appeal as in the case of other orders of the commission.

C. If the director determines that probable cause exists for the complaint, the director shall attempt to achieve a satisfactory adjustment of the complaint through persuasion and conciliation. The director and staff shall neither disclose what has transpired during the attempted conciliation nor divulge information obtained during any hearing before the commission or a commissioner prior to final action relating to the complaint. An officer or employee of the labor department who makes public in any manner whatsoever any information in violation of this subsection is guilty of a misdemeanor and upon conviction shall be fined not more than one thousand dollars ($1,000) or imprisoned not more than one year.

D. A person who has filed a complaint with the division may request and shall receive an order of nondetermination from the director one hundred eighty days after the division's receipt of the complaint. The order of nondetermination may be appealed pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

E. If conciliation fails or if, in the opinion of the director, informal conference cannot result in conciliation and the complainant has not requested a waiver of right to hearing pursuant to the provisions of Subsection H of this section, the commission shall issue a written complaint in its own name against the respondent. The complaint shall set forth the alleged retaliatory action, the secretary's rule or the section of the Whistleblower Protection Act alleged to have been violated and the relief requested. The complaint shall require the respondent to answer the allegations of the complaint at a hearing before the commission or hearing officer and shall specify the date, time and place of the hearing. The hearing date shall not be more than fifteen or less than ten days after service of the complaint. The hearing shall be held in the county where the respondent is doing business or the alleged retaliatory action occurred.

F. Within one year of the filing of a complaint by a person aggrieved, the commission or the director shall:

(1) dismiss the complaint for lack of probable cause;

(2) achieve satisfactory adjustment of the complaint as evidenced by order of the commission; or

(3) file a formal complaint on behalf of the commission.

G. Upon the commission's petition, the district court of the county where the respondent is doing business or the alleged retaliatory action occurred may grant injunctive relief pending hearing by the commission or pending judicial review of an order of the commission so as to preserve the status quo or to ensure that the commission's order as issued will be effective. The commission shall not be required to post a bond.

H. The complainant may seek a trial de novo in the district court in lieu of a hearing before the commission; provided that the complainant requests from the director, in writing, a waiver of the complainant's right to hearing within sixty days of service of written notice of a probable cause determination by the director. The director shall approve the waiver request and shall serve notice of the waiver upon the complainant and respondent. The complainant may request a trial de novo pursuant to Section 39-3-1 NMSA 1978 within thirty days from the date of service of the waiver. Issuance of the notice shall be deemed a final order of the commission.

I. If a complainant prevails in an action or proceeding brought pursuant to this section, the court may award actual damages, punitive damages and reasonable attorney fees, and the state shall be liable the same as a private person.

Section 7. HEARING PROCEDURES.--

A. The respondent to a complaint made pursuant to Section 6 of the Whistleblower Protection Act may file a written answer to the complaint, appear at the hearing, give testimony and be represented by counsel and may obtain from the commission subpoenas for any person or for the production of any evidence pertinent to the proceeding. The complainant shall be present at the hearing and may be represented by counsel. Each party shall have the right to amend his complaint or answer.

B. A panel of three members of the commission designated by the chairman shall sit, and a decision agreed upon by two members of the panel shall be the decision of the commission. However, a commissioner who has filed a complaint shall not sit on the panel hearing his complaint. Hearings also may be conducted by a hearing officer employed by the division or, if the hearing officer is unavailable, one member of the commission may be designated by the chairman to act as a hearing officer. A hearing officer shall have the same powers and duties as the commission as set forth in Paragraph (2) of Subsection A of Section 28-1-4 NMSA 1978.

C. The complainant or his representative shall present to the commission or the hearing officer the case supporting the complaint. Evidence concerning prior attempts at conciliation shall not be received. The director shall not participate in the hearing, except as a witness.

D. The commission and the hearing officer shall not be bound by the formal rules of evidence governing courts of law or equity but shall permit reasonable direct examination and cross-examination and the submission of briefs. Testimony at the hearing shall be taken under oath and recorded by tape or otherwise. Upon the request of any party, testimony shall be transcribed; provided that all costs of transcribing shall be paid by the party so requesting. Each commissioner and hearing officer may administer oaths.

E. Upon the conclusion of a hearing conducted by a hearing officer, the hearing officer shall prepare a written report setting forth proposed findings of fact and conclusions of law and recommending the action to be taken by the commission. The hearing officer shall submit the report to a review panel consisting of no more than three members of the commission designated by the chairman. A commissioner shall not sit on the panel reviewing the hearing officer's report issued in connection with a complaint filed by that commissioner. A decision by a majority of the members of the review panel shall be the decision of the commission. If the commission finds from the evidence presented at any hearing held pursuant to this section that the respondent has engaged in a retaliatory action, it shall make written findings of fact, conclusions of law and its decision based upon the findings of fact and conclusions of law. The commission may adopt, modify or reject the proposed findings of fact and conclusions of law and the action recommended by the hearing officer. Within five days after any order is rendered by the commission following a hearing, the commission shall serve upon each party of record and his attorney, if any, a written copy of the order by certified mail to the party's address of record. All parties shall be deemed to have been notified on the tenth day following the mailing. As part of its order, the commission may require the respondent to pay actual damages to the complainant and to pay reasonable attorney fees, if the complainant was represented by private counsel, and to take such affirmative action as the commission considers necessary, including a requirement for reports of the manner of compliance.

F. If the commission finds from the evidence that the respondent has not engaged in a retaliatory action, it shall make written findings of fact and serve the complainant and respondent with a copy of the findings of fact and with an order dismissing the complaint.

Section 8. ENFORCEMENT.--If a respondent to a complaint filed pursuant to the Whistleblower Protection Act does not comply with an order of the commission, the attorney general or district attorney, at the request of the secretary, shall secure enforcement of the commission's order by a district court. The proceeding shall be initiated by the filing of a petition in the district court of the county where the respondent is doing business or the alleged retaliatory action occurred. A copy of the petition shall be served on the respondent personally or by certified mail, return receipt requested. The court may make and enter upon the proceedings an order to decree enforcement of the order of the commission.

Section 9. APPEAL.--A party may appeal the final decision of the commission pursuant to the provisions of Section 39-3-1 NMSA 1978.

Section 10. POSTING OF LAW AND INFORMATION.--Every employer subject to the Whistleblower Protection Act shall keep posted in a conspicuous place on his premises notices prepared by the division that set forth excerpts of that act and other relevant information as determined by the secretary.