0001| HOUSE BILL 1061 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| RICK MIERA | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO HEALTH CARE; PROVIDING EMPLOYEE PROTECTION AGAINST | 0012| EMPLOYER RETALIATION FOR CERTAIN ACTS; PROVIDING PENALTIES; | 0013| DECLARING AN EMERGENCY. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. SHORT TITLE.--This act may be cited as the | 0017| "Conscientious Employee Protection Act". | 0018| Section 2. LEGISLATIVE FINDING AND DECLARATION.--The | 0019| legislature finds and declares that it is the public policy of | 0020| the state to encourage health care providers to notify | 0021| applicable government entities of suspected unsafe patient care | 0022| and conditions. The legislature encourages this reporting in | 0023| order to protect patients and in order to assist those | 0024| government entities charged with ensuring that health care is | 0025| safe. | 0001| Section 3. DEFINITIONS.-- As used in the Conscientious | 0002| Employee Protection Act: | 0003| A. "employer" means any individual, partnership, | 0004| association, corporation or any person or group of persons | 0005| acting directly or indirectly on behalf of, or in the interest | 0006| of, an employer with the employer's consent and shall include | 0007| the state government and its agencies, political subdivisions | 0008| or instrumentalities; | 0009| B. "employee" means any individual who performs | 0010| services for and under the control and direction of an employer | 0011| for wages or other remuneration; | 0012| C. "public body" means: | 0013| (1) the United States congress and state | 0014| legislature or any popularly elected local government body, or | 0015| any of their members or employees; | 0016| (2) any federal, state or local judiciary or | 0017| any members or employees; | 0018| (3) any grand or petit jury; | 0019| (4) any federal, state or local regulatory, | 0020| administrative public agency or authority; | 0021| (5) any federal, state or local law | 0022| enforcement agency, prosecutorial office, police or peace | 0023| officer; | 0024| (6) any federal, state or local department of | 0025| an executive branch of government; or | 0001| (7) any division, board, bureau, office, | 0002| committee or commission of any public body; | 0003| D. "supervisor" means any individual with an | 0004| employer's organization who has the authority to direct and | 0005| control the work performance of the affected employee, or who | 0006| has the authority to take corrective action regarding the | 0007| violation of the law, rule or regulation of which the employee | 0008| complains; | 0009| E. "retaliatory action" means the discharge, | 0010| suspension or demotion of an employee, including other adverse | 0011| employment action taken against an employee in the terms and | 0012| conditions of employment; and | 0013| F. "improper quality of patient care" means, with | 0014| respect to patient care, any practice, procedure, action or | 0015| failure to act of an employer that is a health care provider | 0016| that violates any law or any rule, regulation or declaratory | 0017| ruling adopted pursuant to law, or any professional code of | 0018| ethics. | 0019| Section 4. EMPLOYER DISCRIMINATION OR RETALIATORY ACTION | 0020| PROHIBITED.--An employer shall not discriminate or take any | 0021| retaliatory action against an employee because the employee | 0022| does any of the following: | 0023| A. discloses, or threatens to disclose, to a | 0024| supervisor or to a public body an activity, policy or practice | 0025| of the employer or another employer with whom there is a | 0001| business relationship, that the employee reasonably believes is | 0002| in violation of a law, or a rule or regulation promulgated | 0003| pursuant to law, or in the case of an employee who is a | 0004| licensed health-care professional, reasonably believes the | 0005| activity, policy or practice constitutes an improper quality of | 0006| patient care; | 0007| B. provides information to, or testifies before, | 0008| any public body conducting an investigation, hearing or inquiry | 0009| into any violation of law, or a rule or regulation promulgated | 0010| pursuant to law, by the employer or another employer with whom | 0011| there is a business relationship, or in the case of an employee | 0012| who is a licensed health-care professional, provides | 0013| information to, or testifies before, any public body conducting | 0014| an investigation, hearing or inquiry into the quality of | 0015| patient care; or | 0016| C. objects to or refuses to participate in any | 0017| activity, policy or practice that the employee reasonably | 0018| believes: | 0019| (1) is in violation of a law, or a rule or | 0020| regulation promulgated pursuant to law, or, if the employee is | 0021| a licensed health-care professional, constitutes improper | 0022| quality of patient care; | 0023| (2) is fraudulent or criminal; or | 0024| (3) is incompatible with a clear mandate of | 0025| public policy concerning public health, safety, welfare or | 0001| protection of the environment. | 0002| Section 5. CIVIL PENALTY.--An employer guilty of | 0003| violating the provisions of Section 4 of the Conscientious | 0004| Employee Protection Act shall be subject to a civil penalty not | 0005| to exceed twenty-five thousand dollars ($25,000). The civil | 0006| penalty shall be assessed and recovered in a civil action | 0007| brought in the name of the people of New Mexico by the attorney | 0008| general or appropriate district attorney in any court of | 0009| competent jurisdiction. | 0010| Section 6. DISCRIMINATORY TREATMENT--REBUTTABLE | 0011| PRESUMPTION.--Any type of discriminatory treatment of an | 0012| employee who has presented a grievance or complaint or has | 0013| initiated, participated or cooperated in any investigation or | 0014| proceeding of any governmental entity where the employer had | 0015| knowledge of the employee's initiation, participation or | 0016| cooperation, shall raise a rebuttable presumption that the | 0017| discriminatory action was taken by the employer in retaliation | 0018| if the discriminatory action occurs within one hundred eighty | 0019| days of the filing of the grievance or complaint. For purposes | 0020| of this section, "discriminatory treatment of an employee" | 0021| includes discharge, demotion, suspension or any other | 0022| unfavorable changes in the terms or conditions of employment, | 0023| or threat of any of these actions. The presumptions in this | 0024| section shall be presumptions affecting the burden of producing | 0025| evidence as provided in Article 3 of the Rules of Evidence | 0001| governing evidence. | 0002| Section 7. MISDEMEANOR.--Any person who willfully | 0003| violates the provisions of Section 4 of the Conscientious | 0004| Employee Protection Act is guilty of a misdemeanor and shall be | 0005| punished by a fine not to exceed twenty-five thousand dollars | 0006| ($25,000). | 0007| Section 8. REINSTATEMENT--REIMBURSEMENT OF WAGES AND | 0008| BENEFITS.--An employee who has been discriminated against in | 0009| employment pursuant to the Conscientious Employee Protection | 0010| Act is entitled to reinstatement of employment and | 0011| reimbursement for lost wages and work benefits caused by the | 0012| acts of the employer, and reimbursement of the legal costs | 0013| associated with pursuing the action. | 0014| Section 9. CONFIDENTIALITY.--The identity of the employee | 0015| initiating the complaint or investigation in good faith to the | 0016| applicable regulatory agency concerning the improper quality of | 0017| care by an employer shall remain confidential. | 0018| Section 10. APPLICATION.--The protections and remedies | 0019| provided by the Conscientious Employee Protection Act do not | 0020| apply to any employee who knowingly or recklessly provides | 0021| substantially false information. | 0022| Section 11. EMERGENCY.--It is necessary for the public | 0023| peace, health and safety that this act take effect immediately. | 0024|  |