Existing law prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employees job duties. A violation of these provisions is a crime.

This bill would extend the protections afforded to employees under these provisions to county patients rights advocates appointed or under contract to provide services relating to mental health advocacy. The bill would provide that prohibitions against retaliation by an employer apply to the state or local contracting agency under these provisions.

Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employees job duties. A violation of these provisions is a crime.

This bill would extend the protections afforded to employees under these provisions to independent contractors and contracted entities working for state and local government who are tasked with receiving and investigating complaints from facilities, services, and programs operated by state and local government. county patients rights advocates appointed or under contract to provide services relating to mental health advocacy. The bill would provide that prohibitions against retaliation by an employer apply to the state or local contracting agency under these provisions.

Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employees job duties. A violation of these provisions is a crime.

This bill would extend the protections afforded to employees under these provisions to independent contractors and contracted entities working for state and local government who are tasked with monitoring, and receiving and investigating complaints from, from facilities, services, and programs operated by state and local government. The bill would provide that prohibitions against retaliation by an employer apply to the state or local contracting agency under these provisions.

Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employees job duties. A violation of these provisions is a crime.

This bill would extend the protections afforded to employees under these provisions to independent contractors working for state and local government who are tasked with monitoring, and receiving complaints from, facilities, services, and programs operated by state and local government.

Because this bill would create a new crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

GOVERNOR'S VETO

GV Bill Id:AB 2317

Author:(Eggman)

As Enrolled Ver:August 30, 2018

2/3 vote

SUMMARY: Extends whistleblower protections afforded to employees to county patients' rights advocates, appointed or under contract, who receive and investigate complaints regarding mental health services.

EXISTING LAW: Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee's job duties.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor and absorbable costs.

COMMENTS: According to the author, the intent of the bill is to "protect independent contractors with state and local government from retaliation, in the event that they must disclose that their contracted employer violated a policy. This bill would provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection afforded by Labor Code Section 1102.5."

The author states this bill is needed for contracted Patients' Rights Advocates (PRAs) who conduct oversight of county mental health facilities and receive and investigate complaints at those facilities. According to the author, "there have been reports of retaliation against PRAs who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them."

This measure has no known opposition.

Related Legislation

AB 403 (Melendez) Chapter 2, Statutes of 2018 known as the "Legislative Employee Whistleblower Protection Act," prohibits a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee's exercise of the right to make a protected disclosure.

GOVERNOR'S VETO MESSAGE:

This bill would extend whistleblower protections afforded to employees to patients' rights advocates regardless of whether they are an employee, an independent contractor, or a business entity.

While I am supportive of the larger policy goal of this bill, to protect the work of patient rights advocates, this is not the appropriate framework. The bill would expand the Labor Commissioner's jurisdiction beyond the typical employer-employee relationship into larger contract disputes between independent contractors and local governments. I do not believe such a broad change in law is warranted when there is limited evidence of a problem.

Analysis Prepared by: Megan Lane / L. & E. / (916) 319-2091 FN: 0005253

 THIRD READING  

Bill No: AB 2317

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/19/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 77-0, 5/31/18 - See last page for vote

SUBJECT:

SOURCE: California Association of Mental Health Patients’ Rights Advocates

California Behavioral Health Planning Council

DIGEST: This bill extends whistleblower protections to individuals and entities that have contracts with state or local government to oversee compliance with patients’ rights in county mental health treatment facilities.

ANALYSIS:

Existing law:

1. Sets forth, as part of the the Lanterman-Petris-Short Act, a series of rights that mental health patients have when residing in a licensed health or community care facility. (Welf. & Inst. Code Sec. 5000 et seq.)
2. Requires local mental health directors to appoint one or more “county patients’ rights advocates” to: receive and investigate complaints of violations of the rights of patients residing in licensed health or community care facilities; to monitor facilities for compliance; to provide training on patients’ rights; and to ensure that patients are notified about their rights. (Welf. & Inst. Code Sec. 5520.)
3. Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code Sec. 1102.5.)

This bill extends existing legal whistleblower protections for employees to all county patients’ rights advocates, whether appointed or under contract.

Background

The Lanterman-Petris-Short Act sets forth what is, in effect, a bill of rights for mental health patients who reside in licensed facilities. (Welf. & Inst. Code Sec. 5000 et seq.) For example, such patients have the right to challenge involuntary holds; the right to refuse medical treatment or medication except under limited circumstances; the right to social interaction, the right to participate in certain activities, the right to physical exercise and recreational opportunities; and the right to be free from abuse, among other things.

To help ensure enforcement of these rights, each county mental health director is required to have one or more county patients’ rights advocates. (Welf. & Inst. Code Sec. 5520.) The role is something like an ombudsperson for mental health patients. It includes monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Carrying out these duties properly will naturally produce some tension between the county patients’ rights advocates and the facilities that they are overseeing. Not surprisingly, the author of this bill reports that some patients’ rights advocates receive pushback from those facilities and sometimes from the county itself.

When a county patients’ rights advocate is an employee of the county, the advocate enjoys legal protections through existing laws that shield whistleblowers. Those laws prohibit employers from trying to prevent their employees from “blowing the whistle” on unlawful conduct. Specifically, employers cannot try to stop their employees from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code Sec. 1102.5(a).) The same laws also prohibit employers from retaliating against employees after those employees have blown the whistle. (Lab. Code Sec. 1102.5(b).)

The problem is that not all county patients’ rights advocates are employees. Many operate as independent contractors or are organizational entities that contract with the local health director to carry out the county patients’ rights advocate role. Either way, because these county patients’ rights advocates are not employees, they do not benefit from the whistleblower protections that employees have.

In order to ensure that county patients’ rights advocates feel free to carry out their duties and to blow the whistle on anything they reasonably believe to be unlawful activity, this bill would extend the existing whistleblower protections for employees to all county patients’ rights advocates, even if they are operating under a contractual arrangement rather than as an employee.

Comments

Practical effect may be to impose “for cause” requirement for non-renewal of contracts. Given the nature of the role, it is likely that Patients’ Rights Advocates will do something during the term of their contract that could qualify for retaliation protections under the whistleblower statutes. As a practical matter, therefore, every time a Patients’ Rights Advocate’s contract is up for renewal, the county will either need to renew the contract or be prepared to document and provide a lawful justification for why it did not. Otherwise, the county will be exposing itself to the possible conclusion – and an associated lawsuit -- that the reason for decision not to renew the current contract is to retaliate for the current contract holder’s efforts to hold county mental health facilities accountable for violations of the rights of their patients.

Protections for a specific role. As introduced, this bill would have provided whistleblower protections to all independent contractors hired by state or local governments and tasked with oversight over, and investigation of, state and local government programs. In its current form, the bill only addresses the specific role of Patients’ Rights Advocates. It is not hard to imagine the same dynamic playing out in other contexts in which oversight of government programs is carried out by independent contractors, however. In the future, the Legislature may want to examine other contexts in which similar whistleblower protections for independent contractors might serve the public policy aim of ensuring witnesses to unlawful activity feel safe reporting what they have observed.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, the Department of Industrial Relations indicates that it would incur first-year costs of $647,000, and ongoing costs of $624,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

SUPPORT: (Verified 8/17/18)

California Association of Mental Health Patients’ Rights Advocates (co-source)

California Behavioral Health Planning Council (co-source)

American Civil Liberties Union of California

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Employment Lawyers Association

California Federation of Teachers, AFL-CIO

California Teamsters Public Affairs Council

Disability Rights California

Engineers and Scientists of California, IFTPE Local 20, AFL-CIO

International Longshore & Warehouse Union

Mental Health America of California

Professional and Technical Engineers, IFPTE Local 21 AFL-CIO

UNITE-HERE AFL-CIO

Utility Workers of America

OPPOSITION: (Verified 8/17/18)

None received

ARGUMENTS IN SUPPORT: According to the author, “Over the years, there have been reports of retaliation against contracted PRAs who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since the job of a PRA exists to govern the wellbeing of patients – not the hospitals in which they reside – this bill seeks to protect those individuals and the populations whom they serve.”

In support of the bill, Mental Health America of California writes:

Patients’ Rights Advocates (PRAs) conduct some of the most challenging and vital work in California’s mental health system by protecting the rights of those with mental illness, who are some of our most vulnerable community members. […]

In order to effectively advocate for patients, PRAs must be able to respond to patient complaints of abuse or neglect, and reach out to state regulatory officials, when necessary, to report a violation. Sometimes this means they must file complaints against county facilities, yet they are directly hired by the county. In such cases, while county employees benefit from whistleblower protections under the law, PRAs who are hired as independent contractors are not protection from retaliation from their employer. A recent survey… found that a concerning number of PRAs reported that fear about their employment effects how strongly they advocate against practices and policies they believe violate their clients’ rights. Furthermore, written comments from several PRAs expressed serious concerns about retaliation.

MHAC believes that AB 2317 will support the work of PRAs and ultimately protect the patients for whom they advocate.

ASSEMBLY FLOOR: 77-0, 5/31/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Rendon

NO VOTE RECORDED: Wood

Prepared by:

8/18/18 16:12:12

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2317 (Eggman) - Whistleblower protection: county patients’ rights advocates

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2317 would extend whistleblower protections to individuals and entities that have contracts with state or local government to oversee compliance with patients’ rights in county mental health treatment facilities.

Fiscal Impact:

The Department of Industrial Relations (DIR) indicates that it would incur first-year costs of $647,000, and ongoing costs of $624,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

Background:

The Lanterman-Petris-Short Act sets forth what is, in effect, a bill of rights for mental health patients who reside in licensed facilities. For example, among other things, such patients have the right to (1) challenge involuntary holds, (2) refuse medical treatment or medication except under limited circumstances, (3) have social interaction, (4) participate in certain activities, (5) engage in physical exercise and recreational opportunities, and (6) be free from abuse.

To help ensure enforcement of these rights, each county mental health director is required to have one or more county patients’ rights advocates. The role is akin to being an ombudsperson for mental health patients, and entails monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Executing these duties will naturally produce some tension between the county patients’ rights advocates and the facilities that they are overseeing. Some patients’ rights advocates reportedly receive pushback from the facilities and sometimes from the county itself.

When a county patients’ rights advocate is an employee of the county, the advocate enjoys legal protections through existing laws that shield whistleblowers. Those laws prohibit employers from trying to prevent their employees from “blowing the whistle” on unlawful conduct. Specifically, employers cannot try to stop their employees from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. The same laws also prohibit employers from retaliating against employees after those employees have blown the whistle.

However, not all county patients’ rights advocates are considered employees. Many operate as independent contractors or are organizational entities that contract with the local health director to carry out the county patients’ rights advocate role. In these cases, because these county patients’ rights advocates are not employees, they do not benefit from the aforementioned whistleblower protections.

Proposed Law:

This bill would extend existing employee legal whistleblower protections to all county patients’ rights advocates, whether appointed or under contract.

Related Legislation:

• AB 2316 (Eggman, 2018) would establish training requirements for Patients’ Rights Advocates to ensure that they are educated on the full spectrum of laws that the job entails. The bill is currently pending on the Senate Floor.
• AB 595 (Bates, Chapter 841, Statutes of 1981) required each county health director to appoint a Patients’ Rights Advocate to oversee compliance and enforcement of patients’ rights in county mental health facilities.

Staff Comments:

In order to ensure that county patients’ rights advocates can carry out their duties and to blow the whistle on anything they reasonably believe to be unlawful activity, this bill would extend the existing whistleblower protections for employees to all county patients’ rights advocates, even if they are operating under a contractual arrangement rather than as an employee.

DIR’s fiscal estimate is based on an assumption that there are approximately 200 Patients’ Rights Advocates in the State that would be covered by the protections of the bill. The number of claims that this bill this could generate is unknown. Additionally, DIR notes that the bill’s proposing to extend retaliation protections to independent contractors and contract entities would raise unique legal concerns, and thus require additional staff resources. Consequently, DIR estimates that the additional staffing cost of implementing the requirements of this bill would be $647,000 in the initial year and $624,000 in subsequent years.

Any local government costs resulting from the mandate in this measure are not state-

reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2317 (Author:Eggman)

Version: May 25, 2018

Hearing Date: June 19, 2018

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Whistleblower protection: county patients’ rights advocates

DESCRIPTION

This bill would extend whistleblower protections to individuals and entities that have contracts with state or local government to oversee compliance with patients’ rights in county mental health treatment facilities.

BACKGROUND

The Lanterman-Petris-Short Act sets forth what is, in effect, a bill of rights for mental health patients who reside in licensed facilities. (Welf. & Inst. Code Sec. 5000 et seq.) For example, such patients have the right to challenge involuntary holds; the right to refuse medical treatment or medication except under limited circumstances; the right to social interaction, the right to participate in certain activities, the right to physical exercise and recreational opportunities; and the right to be free from abuse, among other things.

To help ensure enforcement of these rights, each county mental health director is required to have one or more county patients’ rights advocates. (Welf. & Inst. Code Sec. 5520.) The role is something like an ombudsperson for mental health patients. It includes monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Carrying out these duties properly will naturally produce some tension between the county patients’ rights advocates and the facilities that they are overseeing. Not surprisingly, the author of this bill reports that some patients’ rights advocates receive pushback from those facilities and sometimes from the county itself.

When a county patients’ rights advocate is an employee of the county, the advocate enjoys legal protections through existing laws that shield whistleblowers. Those laws prohibit employers from trying to prevent their employees from “blowing the whistle” on unlawful conduct. Specifically, employers cannot try to stop their employees from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code Sec. 1102.5(a).) The same laws also prohibit employers from retaliating against employees after those employees have blown the whistle. (Lab. Code Sec. 1102.5(b).)

The problem is that not all county patients’ rights advocates are employees. Many operate as independent contractors or are organizational entities that contract with the local health director to carry out the county patients’ rights advocate role. Either way, because these county patients’ rights advocates are not employees, they do not benefit from the whistleblower protections that employees have.

In order to ensure that county patients’ rights advocates feel free to carry out their duties and to blow the whistle on anything they reasonably believe to be unlawful activity, this bill would extend the existing whistleblower protections for employees to all county patients’ rights advocates, even if they are operating under a contractual arrangement rather than as an employee.

CHANGES TO EXISTING LAW

Existing law, the Lanterman-Petris-Short Act, sets forth a series of rights that mental health patients have when residing in a licensed health or community care facility. (Welf. & Inst. Code Sec. 5000 et seq.)

Existing law requires local mental health directors to appoint one or more “county patients’ rights advocates” to: receive and investigate complaints of violations of the rights of patients residing in licensed health or community care facilities; to monitor facilities for compliance; to provide training on patients’ rights; and to ensure that patients are notified about their rights. (Welf. & Inst. Code Sec. 5520.)

Existing law prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code Sec. 1102.5.)

This bill would extend existing legal whistleblower protections for employees to all county patients’ rights advocates, whether appointed or under contract.

COMMENT

1. Stated need for the bill

According to the author:

Over the years, there have been reports of retaliation against contracted PRAs who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since the job of a PRA exists to govern the wellbeing of patients – not the hospitals in which they reside – this bill seeks to protect those individuals and the populations whom they serve.

In support of the bill, Mental Health America of California (MHAC), writes:

Patients’ Rights Advocates (PRAs) conduct some of the most challenging and vital work in California’s mental health system by protecting the rights of those with mental illness, who are some of our most vulnerable community members. […]

In order to effectively advocate for patients, PRAs must be able to respond to patient complaints of abuse or neglect, and reach out to state regulatory officials, when necessary, to report a violation. Sometimes this means they must file complaints against county facilities, yet they are directly hired by the county. In such cases, while county employees benefit from whistleblower protections under the law, PRAs who are hired as independent contractors are not protection from retaliation from their employer. A recent survey… found that a concerning number of PRAs reported that fear about their employment effects how strongly they advocate against practices and policies they believe violate their clients’ rights. Furthermore, written comments from several PRAs expressed serious concerns about retaliation.

MHAC believes that AB 2317 will support the work of PRAs and ultimately protect the patients for whom they advocate.

2. Practical effect may be to impose “for cause” requirement for non-renewal of contracts

Given the nature of the role, it is likely that Patients’ Rights Advocates will do something during the term of their contract that could qualify for retaliation protections under the whistleblower statutes. As a practical matter, therefore, every time a Patients’ Rights Advocate’s contract is up for renewal, the county will either need to renew the contract or be prepared to document and provide a lawful justification for why it did not. Otherwise, the county will be exposing itself to the possible conclusion – and an associated lawsuit -- that the reason for decision not to renew the current contract is to retaliate for the current contract holder’s efforts to hold county mental health facilities accountable for violations of the rights of their patients.

3. Protections for a specific role

As introduced, this bill would have provided whistleblower protections to all independent contractors hired by state or local governments and tasked with oversight over, and investigation of, state and local government programs. In its current form, the bill only addresses the specific role of Patients’ Rights Advocates. It is not hard to imagine the same dynamic playing out in other contexts in which oversight of government programs is carried out by independent contractors, however. In the future, the Legislature may want to examine other contexts in which similar whistleblower protections for independent contractors might serve the public policy aim of ensuring witnesses to unlawful activity feel safe reporting what they have observed.

Support: American Civil Liberties Union of California; California Conference Board of the Amalgamated Transit Union; California Conference of Machinists; California Employment Lawyers Association; California Federation of Teachers, AFL-CIO; California Teamsters Public Affairs Council; Disability Rights California; Engineers and Scientists of California, IFTPE Local 20, AFL-CIO; International Longshore & Warehouse Union; Mental Health America of California; Professional and Technical Engineers, IFPTE Local 21 AFL-CIO; UNITE-HERE AFL-CIO; Utility Workers of America

Opposition: None known

HISTORY

Source: California Association of Mental Health Patients’ Rights Advocates; California Behavioral Health Planning Council

Related Pending Legislation: AB 2316 (Eggman, 2018) would establish training requirements for Patients’ Rights Advocates to ensure that they are educated on the full spectrum of laws that the job entails.

Prior Legislation:

AB 595 (Bates, Ch. 841, Stats. 1981) required each county health director to appoint a Patients’ Rights Advocate to oversee compliance and enforcement of patients’ rights in county mental health facilities.

SB 677 (Short, Ch. 1667, Stats. 1967) established the Lanterman-Petris-Short Act, which sets forth a bill of rights for patients residing in mental health treatment facilities.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Appropriations Committee (Ayes 12, Noes 0)

Assembly Labor and Employment Committee (Ayes 7, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 2317

Author:(Eggman)

As Amended Ver:May 25, 2018

Majority vote

SUMMARY: Extends whistleblower protections afforded to employees to county patients' rights advocates, appointed or under contract, who receive and investigate complaints regarding mental health services.

EXISTING LAW: Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee's job duties.

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor and absorbable costs.

COMMENTS: According to the author, the intent of the bill is to "protect independent contractors with state and local government from retaliation, in the event that they must disclose that their contracted employer violated a policy. This bill would provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection afforded by Labor Code Section 1102.5."

The author states this bill is needed for contracted Patients' Rights Advocates (PRAs) who conduct oversight of county mental health facilities and receive and investigate complaints at those facilities. According to the author, "there have been reports of retaliation against PRAs who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them."

This measure has no known opposition.

Related Legislation

AB 403 (Melendez) Chapter 2, Statutes of 2018 known as the "Legislative Employee Whistleblower Protection Act," prohibits a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee's exercise of the right to make a protected disclosure.

Analysis Prepared by: Megan Lane / L. & E. / (916) 319-2091 FN: 0003145

Date of Hearing: May 9, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2317

Author:(Eggman) – As Amended Ver:April 16, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill extends current-law employment retaliation protections to all state and local independent contractors and contracted entities tasked with receiving and investigating complaints from facilities, services, and programs operated by state and local government.

FISCAL EFFECT:

Ongoing special fund costs of $900,000 to support additional staff resources for the Retaliation Complaint Investigation Unit within the Division of Labor Standards Enforcement (DLSE).

COMMENTS:

1. Background and purpose. Existing law prohibits an employer from preventing an employee from, or retaliating against an employee for, providing information to any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law. According to the author, AB 2317 will provide certain independent contractors with state and local government these same protections.
2. Patients’ Rights Advocates (PRAs). California law requires each county to assign a PRA to represent clients’ rights and interests through direct assistance and training. PRAs, who generally are employed within county mental health systems, do not have whistleblower protections. The author notes these contractors have been retaliated against in certain instances through an employer’s refusal to renew a contract. It is unclear if AB 2317 is intended to apply only to PRAs. If that is the case, the bill’s provisions could be further narrowed, which would significantly reduce costs.
3. Recent legislation. AB 1509 (Hernández), Chapter 792, Statutes of 2015, extended current-law employment retaliation protections to an employee who is a family member of a person engaged in the protected conduct.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: April 25, 2018

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Tony Thurmond, Chair

ABPCA Bill Id:AB 2317 (

Author:Eggman) – As Amended Ver:April 16, 2018

SUBJECT: Whistleblower protection: state and local independent contractors

SUMMARY: Extends whistleblower protections afforded to employees to independent contractors and contracted entities working for state and local government who are tasked with receiving and investigating complaints from, facilities, services, and programs operated by state and local government.

EXISTING LAW: Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, the intent of the bill is to “protect independent contractors with state and local government from retaliation, in the event that they must disclose that their contracted employer violated a policy. This bill would provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection afforded by Labor Code Section 1102.5.”

The author states this bill is particularly needed for contracted Patients’ Rights Advocates (PRAs) who conduct oversight of county mental health facilities and receive and investigate complaints at those facilities. According to the author, “there have been reports of retaliation against PRAs who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them.”

In support of the bill, Mental Health America of California, argues that “this measure will support the work of PRAs and ultimately protect the patients for whom they advocate. While PRAs are one critical example of a position commonly held by independent contractors, this bill will protect others in similar positions as well by extending whistleblower protections to all independent contractors working in watchdog roles with state and local government facilities.”

Related Legislation

AB 403 (Melendez) Chapter 2, Statutes of 2018 known as the “Legislative Employee Whistleblower Protection Act,” prohibits a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee’s exercise of the right to make a protected disclosure.

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU of California

CA Conference Board of the Amalgamated Transit Union

CA Conference of Machinists

California Employment Lawyers Association

California Federation of Teachers

California Teamsters Public Affairs Council

Disability Rights California

Engineers and Scientists of CA, Local 20

International Longshore & Warehouse Union

Mental Health America of California

Professional and Technical Engineers, Local 21

UNITE-HERE

Utility Workers of America

Opposition

None on file.

Analysis Prepared by: Megan Lane / L. & E. /