S T A T E O F N E W Y O R K
________________________________________________________________________
2024
2011-2012 Regular Sessions
I N A S S E M B L Y
January 13, 2011
___________
Introduced by M. of A. LANCMAN -- read once and referred to the Commit-
tee on Labor
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. This act shall be known and may be cited as the "whistle-
blower protection act".
S 2. 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 para-
graph (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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04117-01-1
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(ii) any federal, state, or local [judiciary] COURT, or any member or
employee thereof, or any grand or petit jury;
(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, PENALIZATION OR DISCRIMINATION 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.
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, or threatens to disclose to a supervisor or to a public
body INFORMATION ABOUT an ILLEGAL BUSINESS activity[, 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 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 INFORMATION 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 activ-
ity[, policy or practice in violation of law, rule or regulation] to the
attention of a supervisor [of the employer] and has afforded such
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employer a reasonable opportunity to correct such activity[, policy or
practice]. EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THE
EMPLOYER HAS NOT COMPLIED WITH THE PUBLICATION REQUIREMENTS OF SUBDIVI-
SION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER
TO THE PUBLIC HEALTH OR SAFETY; OR (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.
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 FIVE OF THIS SECTION, the court, in its discretion,
based upon a finding that the employer acted in bad faith in the retali-
atory 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
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.
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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 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, PENALIZE
OR DISCRIMINATE AGAINST, or take other disciplinary or other adverse
personnel action against a public employee regarding the employee's
employment because the employee:
(I) discloses OR THREATENS TO DISCLOSE 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 governmental action" shall mean
any action by a public employer or employee, or an agent of such employ-
er 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.];
(II) PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY
CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY INTO ANY VIOLATION OR
ACTION DESCRIBED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH; OR
(III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY SUCH VIOLATION OR
ACTION.
(b) THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN
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 EMPLOY-
EE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
(C) Prior to disclosing information pursuant to [paragraph (a)]
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 authority 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 paragraph shall be deemed to have disclosed information
to a governmental body under paragraph (a) of this subdivision. NOTIFI-
CATION TO THE APPOINTING AUTHORITY OR DESIGNEE SHALL NOT BE REQUIRED
WHERE: (I) THE PUBLIC EMPLOYER HAS NOT COMPLIED WITH THE PUBLICATION
REQUIREMENTS OF SUBDIVISION FIVE OF THIS SECTION; (II) THERE IS AN IMMI-
NENT AND SERIOUS DANGER TO THE PUBLIC HEALTH OR SAFETY; OR (III) THE
EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE APPOINTING AUTHORITY
OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEAL-
MENT OF THE ILLEGAL BUSINESS ACTIVITY.
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(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, AND WHICH IS IN VIOLATION OF ANY LAW,
RULE OR REGULATION. "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 ORDINANCE; OR
(III) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER.
S 4. Paragraph (c) of 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:
(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
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.