HB2746 - 551R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 23, chapter 2, Arizona Revised Statutes, is amended by adding article 4, to read:

ARTICLE 4. WORKER RIGHTS RELATED TO A PUBLIC HEALTH EMERGENCY

START_STATUTE23-251. Definitions

In this article, unless the context otherwise requires:

1. "Commission" means the industrial commission of Arizona.

2. "Department" means the labor department of the commission.

3. "Principal" means any of the following:

(a) An employer as defined in the fair labor standards act of 1938 (52 Stat. 1060; 29 United States Code section 203).

(b) A foreign labor contractor or a migratory field labor contractor or crew leader.

(d) An entity that contracts with five or more independent contractors in this state each year.

4. "Public health emergency" means either of the following:

(a) A public health order issued by a state or local public health agency.

(b) A state of emergency proclaimed by the governor based on a public health concern.

5. "Whistleblower" means a worker with knowledge of an alleged violation of this article or the worker's representative.

6. "Worker" means either of the following:

(a) Any person, including a migratory laborer, performing labor or services for the benefit of an employer.

(b) a person who works for an entity that contracts with five or more independent contractors in this state each year. END_STATUTE

START_STATUTE23-251.01. Factors in determining whether a person is a worker

Relevant factors in determining whether a person is a worker under section 23-251, paragraph 6, subdivision (a) include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer, except that an individual primarily free from control and direction in performing the service, both under the individual's contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession or business related to the service performed is not a worker under section 23-251, paragraph 6, subdivision (a). END_STATUTE

START_STATUTE23-252. Prohibition against discrimination based on claims related to a public health emergency

A. A principal may not:

1. Discriminate, take adverse action or retaliate against any worker based on the worker, in good faith, raising any reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency to the principal, the principal's agent, other workers, a government agency or the public if the principal controls the workplace conditions giving rise to the threat or violation.

2. Require or attempt to require a worker to sign a contract or other agreement that would limit or prevent the worker from disclosing information about workplace health and safety practices or hazards related to a public health emergency or to otherwise abide by a workplace policy that would limit or prevent such disclosure. A contract or agreement that violates this paragraph is void and unenforceable as contrary to the public policy of this state. A principal's attempt to impose such a contract or agreement is an adverse action in violation of this article.

3. Discriminate, take adverse action or retaliate against a worker based on the worker voluntarily wearing at the worker's workplace the worker's own personal protective equipment, such as a mask, face guard or gloves, if the personal protective equipment is characterized by all of the following:

(a) Provides a higher level of protection than the equipment provided by the principal.

(b) Is recommended by a federal, state or local public health agency with jurisdiction over the worker's workplace.

(c) Does not render the worker incapable of performing the worker's job or prevent a worker from fulfilling the duties of the worker's position.

4. Discriminate, take adverse action or retaliate against a worker based on the worker opposing any practice the worker reasonably believes is unlawful under this article or for making a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing as to any matter the worker reasonably believes to be unlawful under this article.

B. This section does not apply to a worker who discloses information either:

1. That the worker knows to be false.

2. With reckless disregard for the truth or falsity of the information.

C. This section does not authorize a worker to share individual health information that is otherwise prohibited from disclosure under state or federal law. END_STATUTE

START_STATUTE23-253. Notice of rights; posting; rules

A. A principal shall post notice of a worker's rights under this article in a conspicuous location on the principal's premises.

B. The department shall adopt rules to establish the form of the notice required under subsection A of this section. END_STATUTE

START_STATUTE23-254. Relief for aggrieved person

A. A person may seek relief for a violation of this article by either:

1. Filing a complaint with the department pursuant to section 23-255.

2. Bringing an action pursuant to section 23-256 or 23-257.

B. A person shall exhaust administrative remedies pursuant to section 23-255 before bringing an action in court. END_STATUTE

START_STATUTE23-255. Administrative enforcement; civil penalty; rules

A. Within two years after an alleged violation of this article, an aggrieved individual or whistleblower may file a complaint against a principal with the department as specified in subsections B and C of this section.

B. Until the date the department makes a complaint form publicly available, an aggrieved individual or whistleblower may file a complaint of a violation of this article with the department in any form, by mail or email. The department may later require the aggrieved individual or whistleblower to complete the department's complaint form. The filing date is the date of the claimant's original filing, even if the department later requests additional information or completion of the department's complaint form.

C. After the department makes a complaint form publicly available, an aggrieved individual or whistleblower may file a complaint only by completing the required form.

D. The department shall either:

1. Investigate alleged principal violations of, or interference with rights or responsibilities under, this article and complaints filed with the department by aggrieved individuals and whistleblowers.

2. Authorize an aggrieved individual or whistleblower to proceed with an action in court as provided in sections 23-256 and 23-257. A person who receives authorization pursuant to this paragraph is considered to have exhausted administrative remedies.

E. In an investigation of alleged principal retaliation or interference with worker rights, if an investigation yields a determination that:

1. A violation has occurred, the department may award reasonable attorney fees and, after a hearing, may impose a civil penalty of at least $100 for each day the violation continues.

2. The rights of multiple workers have been violated, the violation as to each worker is a separate violation for purposes of this subsection.

3. A worker was fired, voluntarily left employment or experienced a reduction in pay due to a principal's violation, the determination may include an order to either:

(a) Reinstate or rehire the worker and pay the worker's back pay until reinstatement or rehiring.

(b) Pay the worker front pay for a reasonable period after the order, if reinstatement or rehiring is determined not to be feasible.

F. Determinations made by the department under this section are appealable pursuant to title 41, chapter 6, article 10 and rules adopted by the commission regarding appeals and strategic enforcement. END_STATUTE

START_STATUTE23-256. Action in superior court; relief

A. An aggrieved individual, within ninety days after exhausting administrative remedies pursuant to section 23-255, may commence an action in superior court against a principal for a violation of this article.

B. A court may order affirmative relief that the court determines to be appropriate, including the following relief, against a respondent who is found to have engaged in a discriminatory, adverse or retaliatory employment practice prohibited by this article:

1. Reinstatement or rehiring of a worker, with or without back pay.

2. The greater of either:

(a) $10,000.

(b) Any lost pay resulting from the violation, including back pay for a reinstated or rehired worker and front pay for a worker who is not reinstated or rehired.

3. Any other equitable relief the court deems appropriate.

C. In addition to the relief available pursuant to subsection B of this section, in a civil action brought by a plaintiff under this article against a defendant who is found to have engaged in an intentional discriminatory, adverse or retaliatory employment practice, the plaintiff may recover compensatory and punitive damages as follows:

1. A plaintiff may recover punitive damages against a defendant if the plaintiff demonstrates by clear and convincing evidence that the defendant engaged in a discriminatory, adverse or retaliatory employment practice with malice or reckless indifference to the rights of the plaintiff, except that if the defendant demonstrates good faith efforts to comply with this article and to prevent discriminatory, adverse and retaliatory employment practices in the workplace, the court may not award punitive damages against the defendant.

2. A plaintiff may recover compensatory damages against a defendant for other pecuniary losses and emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.

3. In determining the appropriate level of damages to award a plaintiff who has been the victim of an intentional discriminatory, adverse or retaliatory employment practice, the court shall consider the size and assets of the defendant and the egregiousness of the discriminatory, adverse or retaliatory employment practice.

D. Compensatory or punitive damages awarded pursuant to subsection C of this section are in addition to, and do not include, front pay, back pay, interest on back pay or any other type of relief awarded pursuant to subsection B of this section.

E. If a plaintiff in a civil action filed under this article seeks compensatory or punitive damages pursuant to subsection C of this section, any party to the civil action may demand a trial by jury.

F. The court shall award reasonable attorney fees to a plaintiff who prevails in an action brought pursuant to this section. END_STATUTE

START_STATUTE23-257. Whistleblower enforcement

A. A whistleblower who has exhausted the administrative remedies pursuant to section 23-255 may bring a civil action against a principal for a violation of this article on behalf of this state in superior court pursuant to this section. This state may intervene in the action to prosecute in its own name.

B. At the time that the action is filed, the whistleblower shall give written notice to the department of the specific provisions of this article alleged to have been violated.

C. If the court finds that a violation has occurred, the court may enter a judgment against the principal of at least $100 but not more than $1,000 for each violation, and for appropriate injunctive and equitable relief. The court shall award the whistleblower reasonable attorney fees. The attorney fees are not subject to the distribution specified in subsection D of this section.

D. The proceeds of any judgment entered pursuant to this section shall be distributed as follows:

1. Seventy-five percent to the department for enforcement of this article.

2. Twenty-five percent to the first whistleblower who filed the action.

E. The right to bring an action under this section may not be impaired by any private contract. An action under this section shall be tried promptly, without regard to concurrent adjudication of private claims. END_STATUTE

START_STATUTE23-258. Employment support fund; exemption

The employment support fund is established consisting of legislative appropriations for the purposes of administering this article. The commission shall administer the fund. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190 relating to lapsing of appropriations. END_STATUTE

START_STATUTE23-259. Rules

The department may adopt rules necessary to implement this article. END_STATUTE

Sec. 2. Appropriation; employment support fund

The sum of $____________ is appropriated from the state general fund in fiscal year 2021-2022 to the employment support fund established by section 23-258, Arizona Revised Statutes, as added by this act.

Sec. 3. Applicability

This act applies to conduct occurring from and after the effective date of this act.

Sec. 4. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.