S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7144--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 25, 2009
                               ___________

Introduced  by  M. of A. BENEDETTO, LUPARDO -- read once and referred to
  the Committee on Labor -- committee discharged, bill amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the labor law and the civil service law, in relation to
  protection of employees against retaliatory action by employers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  740 of the labor law, as added by chapter 660 of
the laws of 1984, paragraph (g) of subdivision 1 as added and  paragraph
(a)  of subdivision 2 as amended by chapter 442 of the laws of 2006, and
paragraph (d) of subdivision 4 as added by chapter 24  of  the  laws  of
2002, is amended to read as follows:
  S  740.  Retaliatory  personnel  action  by employers; prohibition. 1.
Definitions. For purposes of this section, unless  the  context  specif-
ically indicates otherwise:
  (a) "Employee" means an individual who performs services for and under
the  control  and  direction of an employer for wages or other remunera-
tion.
  (b) "Employer"  means  any  person,  firm,  partnership,  institution,
corporation, or association that employs one or more employees.
  (c)  "Law, rule or regulation" includes: (I) any duly enacted FEDERAL,
STATE OR LOCAL statute or ordinance [or]; (II) any  rule  or  regulation
promulgated  pursuant  to  [any federal, state or local] SUCH statute or
ordinance; OR (III) ANY JUDICIAL OR ADMINISTRATIVE DECISION,  RULING  OR
ORDER.
  (d) "Public body" includes the following:
  (i)  the  United States Congress, any state legislature, or any [popu-
larly-elected] ELECTED local governmental body, or any member or employ-
ee thereof;
  (ii) any federal, state, or local [judiciary] COURT, or any member  or
employee thereof, or any grand or petit jury;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10460-03-9
              

A. 7144--A                          2

  (iii)  any  federal,  state,  or  local regulatory, administrative, or
public agency or authority, or instrumentality thereof; [or]
  (iv) any federal, state, or local law enforcement agency, prosecutori-
al office, or police or peace officer;
  (V)  ANY  FEDERAL, STATE OR LOCAL DEPARTMENT OF AN EXECUTIVE BRANCH OF
GOVERNMENT; OR
  (VI) ANY DIVISION, BOARD, BUREAU, OFFICE, COMMITTEE, OR COMMISSION  OF
ANY  OF  THE PUBLIC BODIES DESCRIBED IN SUBPARAGRAPHS (I) THROUGH (V) OF
THIS PARAGRAPH.
  (e) "Retaliatory personnel action" means the discharge, suspension [or
demotion of], DEMOTION OR PENALIZATION AGAINST  an  employee,  or  other
adverse  employment  action  taken  against an employee in the terms and
conditions of employment.
  (f) "Supervisor" means any individual within an  employer's  organiza-
tion who has the authority to direct and control the work performance of
[the  affected]  AN  employee; or who has [managerial] authority to take
corrective action regarding the [violation of the  law,  rule  or  regu-
lation] ILLEGAL BUSINESS ACTIVITY of which the employee complains.
  (g)  "Health care fraud" means health care fraud as defined by article
one hundred seventy-seven of the penal law.
  (H) "AGENT" MEANS ANY  INDIVIDUAL,  PARTNERSHIP,  ASSOCIATION,  CORPO-
RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
  (I)  "ILLEGAL BUSINESS ACTIVITY" MEANS ANY PRACTICE, PROCEDURE, ACTION
OR FAILURE TO ACT BY AN EMPLOYER,  OR  AN  EMPLOYEE  OR  AGENT  OF  SUCH
EMPLOYER, TAKEN IN THE COURSE OF THE EMPLOYER'S BUSINESS, WHETHER OR NOT
WITHIN  THE  SCOPE OF EMPLOYMENT OR AGENCY, WHICH IS IN VIOLATION OF ANY
LAW, RULE OR  REGULATION  REGARDING  BUSINESS  PRACTICES  PUNISHABLE  BY
IMPRISONMENT OR CIVIL OR CRIMINAL PENALTY.
  2.  Prohibitions. An employer shall not take any retaliatory personnel
action against an employee because such employee does any of the follow-
ing:
  (a) discloses TO A SUPERVISOR  OR  A  PUBLIC  BODY,  or  threatens  to
disclose  to a [supervisor or to a] public body UNLESS THE ILLEGAL BUSI-
NESS ACTIVITY IS REMEDIED, INFORMATION ABOUT an ILLEGAL BUSINESS  activ-
ity[,  policy  or  practice of the employer that is in violation of law,
rule or regulation which violation creates and  presents  a  substantial
and specific danger to the public health or safety, or which constitutes
health care fraud];
  (b)  provides  information  to,  or  testifies before, any public body
conducting an investigation, hearing or inquiry into any such [violation
of a  law,  rule  or  regulation  by  such  employer]  ILLEGAL  BUSINESS
ACTIVITY; or
  (c)  objects to, or refuses to participate in any [such] ILLEGAL BUSI-
NESS activity[, policy or practice in violation of a law, rule or  regu-
lation].
  3.  Application.  The  protection against retaliatory personnel action
provided by PARAGRAPHS (A) AND (B) OF SUBDIVISION TWO  OF  THIS  SECTION
SHALL  APPLY  TO ANY EMPLOYEE WHO IN GOOD FAITH REASONABLY BELIEVES THAT
AN ILLEGAL BUSINESS ACTIVITY HAS OCCURRED OR WILL OCCUR, BASED ON INFOR-
MATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO  BE  TRUE;
PROVIDED  HOWEVER  THAT  THE  PROTECTION  AGAINST  RETALIATORY PERSONNEL
ACTION PROVIDED BY paragraph (a) of  subdivision  two  of  this  section
pertaining to disclosure to a public body shall not apply to an employee
who  makes  such  disclosure  to  a  public body unless the employee has
[brought] MADE A GOOD FAITH EFFORT TO NOTIFY  HIS  OR  HER  EMPLOYER  BY
BRINGING the ILLEGAL BUSINESS activity[, policy or practice in violation

A. 7144--A                          3

of  law,  rule  or  regulation] to the attention of a supervisor [of the
employer] and has afforded such employer  a  reasonable  opportunity  to
correct such activity[, policy or practice]. EMPLOYER NOTIFICATION SHALL
NOT  BE  REQUIRED  WHERE:  (A)  THE  EMPLOYER  HAS NOT POSTED ANY NOTICE
REQUIRED BY SUBDIVISION EIGHT OF THIS SECTION; (B) THERE IS AN  IMMINENT
AND  SERIOUS  DANGER  TO  THE  PUBLIC HEALTH OR SAFETY; (C) THE EMPLOYEE
REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT  IN  A
DESTRUCTION  OF  EVIDENCE  OR  OTHER CONCEALMENT OF THE ILLEGAL BUSINESS
ACTIVITY; OR (D) SUCH VIOLATION COULD REASONABLY BE EXPECTED TO LEAD  TO
ENDANGERING THE WELFARE OF A MINOR.
  4.  Violation;  remedy.  (a) An employee who has been the subject of a
retaliatory personnel action in violation of this section may  institute
a  civil  action  in a court of competent jurisdiction for relief as set
forth in subdivision five of this section within [one  year]  TWO  YEARS
after the alleged retaliatory personnel action was taken.
  (b) Any action authorized by this section may be brought in the county
in which the alleged retaliatory personnel action occurred, in the coun-
ty  in  which  the  complainant  resides,  or in the county in which the
employer has its principal place of business.
  (c) It shall be a defense to  any  action  brought  pursuant  to  this
section that the personnel action was predicated upon grounds other than
the  employee's  exercise  of  any  rights protected by this section. It
shall also be a defense that the individual was an independent  contrac-
tor.
  [(d)  Notwithstanding the provisions of paragraphs (a) and (c) of this
subdivision, a health care employee who has been the subject of a retal-
iatory action by a health care employer in violation  of  section  seven
hundred  forty-one  of  this  article  may institute a civil action in a
court of competent jurisdiction for relief as set forth  in  subdivision
five  of  this  section  within  two years after the alleged retaliatory
personnel action was taken. In addition to the relief set forth in  that
subdivision, the court, in its discretion, based upon a finding that the
employer  acted  in  bad faith in the retaliatory action, may assess the
employer a civil penalty  of  an  amount  not  to  exceed  ten  thousand
dollars,  to  be  paid  to  the  improving quality of patient care fund,
established pursuant to section ninety-seven-aaaa of the  state  finance
law.]
  5.  Relief. In any action brought pursuant to subdivision four of this
section, the court may order relief as follows:
  (a) [an injunction to restrain continued violation of this section;
  (b)] the reinstatement of the  employee  to  the  same  position  held
before the retaliatory personnel action, or to an equivalent position;
  [(c)]  (B)  the  reinstatement  of  full fringe benefits and seniority
rights;
  [(d)] (C) the compensation for lost wages, benefits and other remuner-
ation; [and
  (e)] (D) COMPENSATORY DAMAGES FOR ECONOMIC LOSS;
  (E) the payment by the employer of  reasonable  costs,  disbursements,
and attorney's fees;
  (F)  AN  INJUNCTION  TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF
THIS SECTION WITH RESPECT TO THE EMPLOYEE; AND
  (G) A CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN  THOUSAND  DOLLARS,
IF  THE  COURT,  IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD
FAITH IN THE RETALIATORY ACTION.
  6. Employer relief. A court, in its discretion, may  also  order  that
reasonable  attorneys' fees and court costs and disbursements be awarded

A. 7144--A                          4

to an employer if the court determines that  an  action  brought  by  an
employee  under  this  section was without REASONABLE basis in law or in
fact.
  7.  Existing rights. Nothing in this section shall be deemed to dimin-
ish the rights, privileges, or remedies of any employee under any  other
law  or  regulation  or  under  any  collective  bargaining agreement or
employment contract; except that the institution of an action in accord-
ance with this section shall be deemed a waiver of the rights and  reme-
dies  available  under  any other contract, collective bargaining agree-
ment, law, rule or regulation or under the common law.
  8.  PUBLICATION.  EVERY  EMPLOYER  SHALL  INFORM  EMPLOYEES  OF  THEIR
PROTECTIONS,  RIGHTS  AND  OBLIGATIONS  UNDER THIS SECTION, BY POSTING A
NOTICE THEREOF.  SUCH NOTICES SHALL BE POSTED  CONSPICUOUSLY  IN  EASILY
ACCESSIBLE  AND  WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
AND APPLICANTS FOR EMPLOYMENT.
  S 2. Subdivision 4 of section 741 of the labor law, as added by  chap-
ter 24 of the laws of 2002, is amended to read as follows:
  4.  Enforcement.  A  health care employee may seek enforcement of this
section pursuant to [paragraph (d) of] subdivision four of section seven
hundred forty of this article.
  S 3. Subdivision 2 of section 75-b of the civil service law, as  added
by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
ter 899 of the laws of 1986, is amended to read as follows:
  2.  (a) A public employer shall not dismiss, SUSPEND, DEMOTE OR PENAL-
IZE or take other disciplinary or other [adverse personnel  action]  ACT
OF  REPRISAL  against a public employee regarding the employee's employ-
ment because the employee: (I)  discloses  TO  A  GOVERNMENTAL  BODY  OR
THREATENS  TO  DISCLOSE  IF  THE  IMPROPER CONDUCT IS NOT REMEDIED, to a
governmental body information[: (i)] regarding a  violation  of  a  law,
rule  or  regulation  which violation creates and presents a substantial
and specific danger to the public health or safety[; or (ii)  which  the
employee  reasonably  believes  to  be true and reasonably believes], OR
WHICH constitutes an improper governmental  action[.  "Improper  govern-
mental  action"  shall mean any action by a public employer or employee,
or an agent of such employer or employee, which  is  undertaken  in  the
performance  of such agent's official duties, whether or not such action
is within the scope of his employment, and which is in violation of  any
federal, state or local law, rule or regulation], OR WHICH COULD REASON-
ABLY  BE  EXPECTED  TO  LEAD TO ENDANGERING THE WELFARE OF A MINOR; (II)
PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING
AN INVESTIGATION, HEARING OR  INQUIRY  INTO  ANY  IMPROPER  GOVERNMENTAL
ACTION;  OR (III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY IMPROPER
GOVERNMENTAL ACTION.
  (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL  ACTION  PROVIDED  IN
SUBPARAGRAPHS  (I)  AND  (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL
APPLY TO ANY EMPLOYEE WHO IN  GOOD  FAITH  REASONABLY  BELIEVES  THAT  A
VIOLATION  OR  IMPROPER  GOVERNMENTAL ACTION HAS OCCURRED OR WILL OCCUR,
BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES
TO BE TRUE.
  (C) Prior to disclosing information pursuant to  SUBPARAGRAPH  (I)  OF
paragraph  (a)  of  this subdivision, an employee shall have made a good
faith effort to provide the appointing authority or his or her  designee
the information to be disclosed and shall provide the appointing author-
ity  or  designee  a  reasonable  time to take appropriate action unless
there is imminent and serious danger to public health or safety. For the
purposes of this subdivision, an employee  who  acts  pursuant  to  this

A. 7144--A                          5

paragraph  shall  be  deemed  to have disclosed information to a govern-
mental body under paragraph (a) of this subdivision.    NOTIFICATION  TO
THE  APPOINTING  AUTHORITY  OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I)
THE  EMPLOYER  HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION FIVE OF
THIS SECTION; (II) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC
HEALTH OR SAFETY; (III) THE EMPLOYEE REASONABLY BELIEVES THAT  REPORTING
TO  THE  SUPERVISOR  WOULD  RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER
CONCEALMENT OF THE ILLEGAL BUSINESS ACTIVITY;  OR  (IV)  SUCH  VIOLATION
COULD  REASONABLY  BE  EXPECTED  TO LEAD TO ENDANGERING THE WELFARE OF A
MINOR.
  (D) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCEDURE,
ACTION OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR  AN  AGENT
OF  SUCH EMPLOYER OR EMPLOYEE, WHICH IS UNDERTAKEN IN THE PERFORMANCE OF
SUCH AGENT'S OFFICIAL DUTIES, WHETHER OR NOT SUCH ACTION IS  WITHIN  THE
SCOPE  OF  SUCH  PERSON'S  EMPLOYMENT, WHICH IS IN VIOLATION OF ANY LAW,
RULE OR REGULATION REGARDING GOVERNMENTAL ACTION PUNISHABLE BY IMPRISON-
MENT OR CIVIL OR CRIMINAL PENALTY. "LAW, RULE OR  REGULATION"  INCLUDES:
(I)  ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE; (II)
ANY RULE OR REGULATION PROMULGATED PURSUANT TO ANY SUCH STATUTE OR ORDI-
NANCE; OR (III) ANY  JUDICIAL  OR  ADMINISTRATIVE  DECISION,  RULING  OR
ORDER.
  S  4. Subdivision 3 of section 75-b of the civil service law, as added
by chapter 660 of the laws of 1984, is amended to read as follows:
  3. (a) Where an employee is subject to dismissal or other disciplinary
action under a final and binding arbitration provision, or other  disci-
plinary  procedure  contained in a collectively negotiated agreement, or
under section seventy-five of this title or any other provision of state
or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION  THAT
UNIQUELY  FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
believes THAT SUCH dismissal [or], other disciplinary  action  OR  OTHER
PERSONNEL ACTION would not have been taken but for the conduct protected
under  subdivision  two  of this section, he or she may assert such as a
defense before the designated arbitrator or hearing officer. The  merits
of  such defense shall be considered and determined as part of the arbi-
tration award or hearing officer decision of the matter. If there  is  a
finding  that the dismissal or other disciplinary action is based solely
on a violation by the employer of such subdivision,  the  arbitrator  or
hearing officer shall dismiss or recommend dismissal of the disciplinary
proceeding,  as appropriate, and, if appropriate, reinstate the employee
with back pay, and, in the case of an arbitration  procedure,  may  take
other  appropriate action as is permitted in the collectively negotiated
agreement.
  (b) Where an employee is subject to a collectively  negotiated  agree-
ment  which  contains  provisions  preventing  an  employer  from taking
adverse personnel actions and which contains a final and  binding  arbi-
tration  provision  to  resolve alleged violations of such provisions of
the agreement and the employee reasonably believes that  such  personnel
action  would  not  have  been taken but for the conduct protected under
subdivision two of this section, he or she may assert such  as  a  claim
before  the  arbitrator.  The  arbitrator  shall consider such claim and
determine its merits and shall, if a determination  is  made  that  such
adverse personnel action is based on a violation by the employer of such
subdivision, take such action to remedy the violation as is permitted by
the collectively negotiated agreement.
  (c)  [Where]  IN ADDITION TO OR IN LIEU OF THE PROCEDURES SET FORTH IN
PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION, OR WHERE an employee is  not

A. 7144--A                          6

subject to any of the provisions of [paragraph (a) or (b) of this subdi-
vision]  SUCH PARAGRAPHS, the employee may commence an action in a court
of competent jurisdiction under the same terms and  conditions  AND  FOR
THE SAME RELIEF as set forth in article twenty-C of the labor law.
  S  5. Section 75-b of the civil service law is amended by adding a new
subdivision 5 to read as follows:
  5. EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR  PROTECTIONS,
RIGHTS  AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF.
SUCH NOTICES SHALL BE POSTED  CONSPICUOUSLY  IN  EASILY  ACCESSIBLE  AND
WELL-LIGHTED  PLACES  CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS
FOR EMPLOYMENT.
  S 6. This act shall take effect on the ninetieth day  after  it  shall
have become a law.