senate Bill S3862A

2013-2014 Legislative Session

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
Jun 10, 2014 advanced to third reading
Jun 09, 2014 2nd report cal.
Jun 03, 2014 1st report cal.1190
Jan 08, 2014 referred to labor
Jun 21, 2013 committed to rules
May 21, 2013 amended on third reading 3862a
Apr 24, 2013 advanced to third reading
Apr 23, 2013 2nd report cal.
Apr 22, 2013 1st report cal.358
Feb 25, 2013 referred to labor

Votes

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Jun 3, 2014 - Labor committee Vote

S3862A
8
0
committee
8
Aye
0
Nay
7
Aye with Reservations
1
Absent
0
Excused
0
Abstained
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Labor Committee Vote: Jun 3, 2014

absent (1)

Apr 22, 2013 - Labor committee Vote

S3862
10
0
committee
10
Aye
0
Nay
5
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S3862 - Bill Details

See Assembly Version of this Bill:
A5696A
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §§740 & 741, Lab L; amd §75-b, Civ Serv L

S3862 - Bill Texts

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Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities.

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BILL NUMBER:S3862

TITLE OF BILL: An act to amend the labor law and the civil service
law, in relation to protection of employees and former employees
against retaliatory action by employers

PURPOSE: This bill provides greater protections for "whistleblower"
employees who disclose information about illegal activities of their
employers.

SUMMARY OF PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition
of "law, rule or regulation," to clearly include state, local and
federal laws, rules or regulations and state, local and federal
judicial and administrative decisions. It clarifies the definition of
"public body" to include any department of the executive branch and
any division, board or bureau of any public body. Expands the term
"retaliatory personnel action" to include the penalization or
discrimination against an employee or former employee who "blew the
whistle".

This section also specifies that an employee will be protected against
retaliatory action for disclosure of employer activity that the
employee in good faith reasonably believes has occurred or will occur
and in good faith reasonably believes constitutes illegal business
activity.

Adds a "good faith" requirement relating to the effort of the employee
to bring an illegal activity to the attention of the employer in order
to be protected, and creates certain exceptions when such prior to
notice to employer is not necessary. It also extends the statute of
limitations from one year to two years for bringing a civil action for
retaliatory action by an employer. Further, it requires employers to
inform their employees of their rights under this section.

Adds a right to a jury trial.

Adds remedies for whistleblowers who suffer impermissible retaliatory
personnel actions, and restricts situations when employer is entitled,
in court's discretion, to attorney's fees when. successful.

Section 2: Amends Labor Law section 741, which allows a health care
employee to seek enforcement of section 741 pursuant to Labor Law
section 740, to conform to the above amendments to Labor Law section
740.

Section 3: Amends Civil Service Law 75-b (2) by: A) Adding
protections, to create parity for whistleblowers protections for
public employees as for private employees under Labor Law 740; and B)
Limiting prior notification to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include under the
definition of retaliatory action, the elimination of a job title that
uniquely singles out such employee.


Section 5: Adds a new Civil Service Law 75-b (5) to require all public
employers to inform their employees of their whistle blower rights
under this Section of law.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Labor Law § 740
prohibits private employers from firing or taking any other adverse
employment action against an employee who refuses to participate in an
illegal business activity, or who discloses such illegal activity to a
public body, if the illegal activity presents a "substantial and
specific danger to the public health or safety." This protection does
not apply, however, unless the employee has brought the illegal
behavior to the attention of a supervisor and has given the employer
an opportunity to correct the behavior. Civil Service Law § 75-b
prohibits public employers from firing or taking any other adverse
employment action against a public employee who discloses information:

(1) regarding a violation of a law, rule or regulation presenting a
substantial and specific danger to the public health and safety; or
(2) regarding any action by a public employer which the employee
reasonably believes constitutes a violation of any federal, state or
local law, rule or regulation. Prior to disclosing the information,
the employee must make a good faith effort to inform his or her
employer and to give the employer a reasonable time to take
appropriate action, unless there is an imminent and serious danger to
the public health or safety.

JUSTIFICATION: In 1984, private and public employees in New York
State who report illegal or improper activities by their employers are
given certain protections under New York's whistleblower protection
law. Unfortunately, there are several weaknesses in the current
whistleblower law. These weaknesses greatly limit the protections
provided to employees. Further, it deters honest employees from
revealing illegal activities of their employers, out of the legitimate
fear that they will be dismissed or otherwise retaliated against for
reporting such violations.

First, Labor Law § 740 only protects employees who disclose illegal
activities that present a "substantial and specific danger to the
public health or safety." Thus, if an employee becomes aware that his
or her employer is knowingly defrauding its customers, or stealing
from government authorities, for example, the whistleblower law will
provide no protection to the employee.

Second, a private employee who in good faith reasonably believes that
his or her employer has engaged in actions which the employee in good
faith reasonably believes constitute a violation of law can be
terminated for revealing that information to government authorities or
the employer, if it turns out that no violation can be proved in
court. The Civil Service Law was amended in 1986 to protect public
employees who reasonably believe that a violation has occurred, but
private employees still do not have that protection.

New York's whistleblower statutes are also not especially effective
because they generally do not apply unless the employee has brought
the illegal behavior to the attention of a supervisor and has given
the employer an opportunity to correct the illegal behavior.
Unfortunately, many employees do not know of this requirement, and are


never told by their employers that they can be fired if they do not
first tell the employer of the illegal activity. The employer
notification requirement set forth in Labor Law 5 740 means that
private employees, unlike public employees under Civil Service Law
75-b, can be fired for reporting violations, unreported to the
employer, even where such present an imminent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business
activities, Civil Service Law § 75-b does not contain a similar
provision. This means that public employees can be fired for refusing
to violate the law. Finally, the remedies available to employees under
Labor Law § 740 are clearly inadequate, and the right to a jury trial
is not provided for.

This bill addresses these numerous defects in the current
Whistleblower statutes. It implements certain recommendations made by
New York State Law Revision Commission following a five-year study of
the law, and enacts, for all employees, protections similar to those
extended by Labor Law § 741 to healthcare workers during the 2002
legislative session.

New York State should encourage, not discourage, employees who wish to
report violations of law by their employers. Although the
"Whistleblower Law" enacted in 1984 was a good first step, experience
over the past 20 years has shown that the law is simply inadequate.
By making the necessary reforms to strengthen the law, this bill will
act as a deterrent to employers who might otherwise engage in illegal
activity, will protect the public from such wrongdoing, and will
ensure that the honest and law-abiding employees who have the courage
to reveal illegal activities are protected against retaliation by
their employers.

LEGISLATIVE HISTORY: Similar to Attorney General departmental bills
2007 (A.3487); 2004 legislative session (A.8794), and a similar bill
was submitted during the 2001-2002 legislative session. This bill is
similar to S.5737/A.7144A (Klein/Benedetto) which passed the Assembly
and Senate, but was vetoed by Governor Paterson.

FISCAL IMPLICATIONS: This bill is fiscally neutral.

EFFECTIVE DATE: This act shall take effect 90 days after it shall
have become a law.

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

                                  3862

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 25, 2013
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the labor law and the civil service law, in relation  to
  protection  of  employees  and  former  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.
                                                           LBD08920-03-3

S. 3862                             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,  PENALIZATION  OR  DISCRIMINATION  AGAINST  an
employee  OR FORMER EMPLOYEE, or other adverse [employment] action taken
against an employee OR FORMER 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.] "AGENT" MEANS ANY  INDIVID-
UAL, PARTNERSHIP, ASSOCIATION, CORPORATION OR GROUP OF PERSONS ACTING ON
BEHALF OF AN EMPLOYER.
  (H)  "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, THAT IS IN VIOLATION OF ANY
LAW, RULE OR REGULATION PUNISHABLE BY IMPRISONMENT OR CIVIL OR  CRIMINAL
PENALTY.
  2.  Prohibitions. An employer shall not take any retaliatory personnel
action against an employee OR FORMER EMPLOYEE because such  employee  OR
FORMER  EMPLOYEE  does  any  of  the  following  WHILE  EMPLOYED  BY THE
EMPLOYER:
  (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),  (B)  AND  (C) 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 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

S. 3862                             3

has [brought] MADE A GOOD FAITH EFFORT TO NOTIFY HIS OR HER EMPLOYER  BY
BRINGING the ILLEGAL BUSINESS activity[, policy or practice in violation
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]. SUCH 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; (D) SUCH ACTIVITY COULD REASONABLY  BE  EXPECTED  TO  LEAD  TO
ENDANGERING THE WELFARE OF A MINOR; (E) THE EMPLOYEE REASONABLY BELIEVES
THAT  REPORTING  TO  THE SUPERVISOR WOULD RESULT IN PHYSICAL HARM TO THE
EMPLOYEE OR ANY OTHER PERSON; OR (F) THE  EMPLOYEE  REASONABLY  BELIEVES
THAT  THE  SUPERVISOR  IS ALREADY AWARE OF THE ILLEGAL BUSINESS ACTIVITY
AND WILL NOT CORRECT SUCH 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.  IN ANY SUCH ACTION, THE
PARTIES SHALL BE ENTITLED TO A JURY TRIAL.
  (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.] EXCEPT
AS  OTHERWISE  PROVIDED  IN THIS SECTION, A VIOLATION OF THIS SECTION IS
ESTABLISHED WHEN THE COMPLAINANT DEMONSTRATES THAT A  MOTIVATING  FACTOR
FOR  THE  RETALIATORY  PERSONNEL ACTION VIOLATES SUBDIVISION TWO OF THIS
SECTION. REMEDIES FOR VIOLATION OF SUBDIVISION TWO OF THIS SECTION SHALL
BE LIMITED SOLELY TO THOSE PROVIDED IN PARAGRAPHS (E), (F)  AND  (G)  OF
SUBDIVISION  FIVE  OF  THIS SECTION IF THE EMPLOYER DEMONSTRATES THAT IT
WOULD HAVE TAKEN THE SAME ACTION IN THE  ABSENCE  OF  THE  IMPERMISSIBLE
MOTIVATING  FACTOR. It shall [also] be a defense that the individual was
an independent contractor.
  [(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;

S. 3862                             4

  (b)]  the  reinstatement  of  the  employee  to the same position held
before the retaliatory personnel action[,] or to an equivalent position,
OR FRONT PAY IN LIEU THEREOF;
  [(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  AND  FOR  EMOTIONAL
DISTRESS;
  (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
AND/OR A LIQUIDATED DAMAGES AWARD EQUAL TO AMOUNTS OF  DAMAGES  PURSUANT
TO  PARAGRAPHS  (C)  AND  (D)  OF THIS SUBDIVISION, IF THE COURT, IN ITS
DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD FAITH IN THE RETALIATO-
RY 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 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
accordance  with this section shall be deemed a waiver of the rights and
remedies available  under  any  other  contract,  collective  bargaining
agreement, 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] SUBDIVISIONS four AND
FIVE 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,  PENALIZE
OR  DISCRIMINATE  AGAINST,  or take other disciplinary or other [adverse
personnel action] ACT OF REPRISAL against a  public  employee  regarding
the  employee's  employment  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]  OR
presents a substantial and specific danger to the public health or safe-
ty[;  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 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

S. 3862                             5

which  is in violation of any federal, state or local law, rule or regu-
lation], OR WHICH COULD REASONABLY 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 VIOLATION OR IMPROPER GOVERNMENTAL ACTION; OR (III) OBJECTS TO,
OR REFUSES TO PARTICIPATE IN, ANY SUCH  VIOLATION  OR  IMPROPER  GOVERN-
MENTAL 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
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 APPOINTING AUTHORITY OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF
EVIDENCE  OR  OTHER  CONCEALMENT OF THE IMPROPER GOVERNMENTAL ACTION; OR
(IV) SUCH ACTIVITY 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, AND 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

S. 3862                             6

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
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.

Co-Sponsors

S3862A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A5696A
Current Committee:
Law Section:
Labor Law
Laws Affected:
Amd §§740 & 741, Lab L; amd §75-b, Civ Serv L

S3862A (ACTIVE) - Bill Texts

view summary

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities.

view sponsor memo
BILL NUMBER:S3862A

TITLE OF BILL: An act to amend the labor law and the civil service
law, in relation to protection of employees and former employees
against retaliatory action by employers

PURPOSE: This bill provides greater protections for "whistieblower"
employees who disclose information about illegal activities of their
employers.

SUMMARY OF PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition
of "law, rule or regulation," to clearly include state, local and
federal laws, rules or regulations and state, local and federal
judicial and administrative decisions. It clarifies the definition of
"public body" to include any department of the executive branch and
any division, board or bureau of any public body. Expands the term
"retaliatory action" to include the penalization or discrimination
against an employee or former employee who "blew the whistle".

This section also specifies that an employee will be protected against
retaliatory action for disclosure of employer activity that the
employee in good faith reasonably believes has occurred or will occur
and in good faith reasonably believes constitutes illegal business
activity.

Adds a "good faith" requirement relating to the effort of the employee
to bring an illegal activity to the attention of the employer in order
to be protected, and creates certain exceptions when such prior to
notice to employer is not necessary. It also extends the statute of
limitations from one year to two yells for bringing a civil action for
retaliatory action by an employer. Further, it requires employers to
inform their employees of their rights under this section.

Adds a right to a jury trial.

Adds remedies for whistiablowers who suffer impermissible retaliatory
actions, and restricts situations when employer is entitled, in
court's discretion, to attorney's fees when successful.

Section 2: Amends Labor Law section 741, which allows a health care
employee to seek enforcement of section 741 pursuant to Labor Law
section 740, to conform to the above amendments to Labor Law section
740.

Section 3: Amends Civil Service Law 75-b (2) by: A) Adding
protections, to create parity for whistieblower protections for public
employees as for private employees under Labor Law 740; and 3)
Limiting prior notification to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include under the
definition of retaliatory action, the elimination of a job title that
uniquely singles out such employee.


Section 5: Adds a new Civil Service Law 75-b (5) to require all public
employers to inform their employees of their whistle blower rights
under this Section of law.

EFFECTS OF PRESENT LAW WHICH THIS SILL WOULD ALTER: Labor Law § 740
prohibits private employers from firing or taking any other adverse
employment action against an employee who refuses to participate in an
illegal business activity, or who discloses such illegal activity to a
public body, if the illegal activity presents a "substantial and
specific danger to the public health or safety." This protection does
not apply, however, unless the employee has brought the illegal
behavior to the attention of a supervisor and has given the employer
an opportunity to correct the behavior. Civil Service Law § 75-h
prohibits public employers from firing or taking any other adverse
employment action against a public employee who discloses information:

(1) regarding a violation of a law, rule or regulation presenting a
substantial and specific dancer to the public health and safety; or
(2) regarding any action by a public employer which the employee
reasonably believes constitutes a violation of any federal, state or
local law, rule or regulation. Prior to disclosing the information,
the employee must make a good faith effort to inform his or her
employer and to give the employer a reasonable time to take
appropriate action, unless there is an imminent and serious danger to
the public health or safety.

JUSTIFICATION: In 1984, private and public employees in New York State
who report illegal or improper activities by their employers are given
certain protections under New York's whistleblower protection law.
Unfortunately, there are several weaknesses in the current
whistleblower law. These weaknesses greatly limit the protections
provided to employees. Further, it deters honest employees from
revealing illegal activities of their employers, out of the legitimate
fear that they will be dismissed or otherwise retaliated against for
reporting such violations.

First, Labor Law § 740 only protects employees who disclose illegal
activities that present a "substantial and specific danger to the
public health or safety." Thus, if an employee becomes aware that his
or her employer is knowingly defrauding its customers, or stealing
from government authorities, for example, the whistleblower law will
provide no protection to the employee. This bill's amendment maintains
the current Protections for employees who blow the whistle on public
health or safety violations or health care fraud, but expands that
protection to employees who blow the whistle on any "illegal business
activity."

Second, a private employee who in good faith reasonably believes that
his or her employer has engaged in actions which the employee in good
faith reasonably believes constitute a violation of law can be
terminated for revealing that information to government authorities or
the employer, if it turns out that no violation can be proved in
court. The Civil Service Law was amended in 1986 to protect public
employees who reasonably believe that a violation has occurred, but
private employees still do not have that protection.


New York's whistleblower statutes are also not especially effective
because they generally do not apply unless the employee has brought
the illegal behavior to the attention of a supervisor and has given
the employer an opportunity to correct the illegal behavior.
Unfortunately, many employees do not know of this requirement, and are
never told by their employers that they can be fired if they do not
first tell the employer of the illegal activity. The employer
notification requirement set forth in Labor Law § 740 means that
private employees, unlike public employees under Civil Service Law
75-b, can be fired for reporting violations, unreported to the
employer, even where such present an imminent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business
activities, Civil Service Law § 75-h does not contain a similar
provision. This means that public employees can be fired for refusing
to violate the law. Finally, the remedies available to employees under
Labor Law § 740 are clearly inadequate, and the right to a jury trial
is not provided for.

This bill addresses these numerous defects in the current
Whistleblower statutes. It implements certain recommendations made by
New York State Law Revision Commission following a five-year study of
the law, and enacts, for all employees, protections similar to those
extended by Labor Law § 741 to healthcare workers during the 2002
legislative session.

New York State should encourage, not discourage, employees who wish to
report violations of law by their employers. Although the
"Whistleblower Law" enacted in 1984 was a good first step, experience
over the past 25 years has shown that the law is simply inadequate.
By making the necessary reforms to strengthen the law, this bill will
act as a deterrent to employers who might otherwise engage in illegal
activity, will protect the public from such wrongdoing, and will
ensure that the honest and law-abiding employees who have the courage
to reveal illegal activities are protected against retaliation by
their employers.

LEGISLATIVE HISTORY: Similar to Attorney General departmental bills
2007 (A.3487); 2004 legislative session (A.8794), and a similar bill
was submitted during the 2001-2002 legislative session. This bill is
similar to S.5737/A.7144A (Klein/Benedetto), which passed the Assembly
and Senate, but was vetoed by Governor Paterson.

FISCAL IMPLICATIONS: This bill fiscally neutral.

EFFECTIVE DATE: This act shall take effect 90 days after it shall have
become a law.

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

                                 3862--A
    Cal. No. 358

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 25, 2013
                               ___________

Introduced by Sens. KLEIN, SAVINO -- read twice and ordered printed, and
  when  printed  to  be  committed to the Committee on Labor -- reported
  favorably from said committee, ordered to  first  and  second  report,
  ordered  to  a third reading, amended and ordered reprinted, retaining
  its place in the order of third reading

AN ACT to amend the labor law and the civil service law, in relation  to
  protection  of  employees  and  former  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08920-05-3

S. 3862--A                          2

  (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;
  (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 FORMER EMPLOYEE, or other adverse [employment] action  taken
against  an  employee OR FORMER 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.] "AGENT" MEANS ANY INDIVID-
UAL, PARTNERSHIP, ASSOCIATION, CORPORATION OR GROUP OF PERSONS ACTING ON
BEHALF OF AN EMPLOYER.
  (H) "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, THAT IS IN  VIOLATION  OF  ANY
LAW,  RULE OR REGULATION PUNISHABLE BY IMPRISONMENT OR CIVIL OR CRIMINAL
PENALTY.
  2. Prohibitions. An employer shall not take any  retaliatory  [person-
nel] action against an employee OR FORMER EMPLOYEE because such employee
OR  FORMER  EMPLOYEE  does  any  of  the following WHILE EMPLOYED BY THE
EMPLOYER, WHETHER OR NOT WITHIN THE SCOPE OF THE EMPLOYEE'S JOB DUTIES:
  (a) discloses TO A SUPERVISOR  OR  A  PUBLIC  BODY,  or  threatens  to
[disclose]  MAKE  A  DISCLOSURE  to  a  [supervisor or to a] public body
UNLESS THE EMPLOYER REMEDIES THE ILLEGAL BUSINESS ACTIVITY,  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 PARAGRAPHS (A), (B) AND  (C)  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,

S. 3862--A                          3

BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES
TO  BE  TRUE;  PROVIDED  HOWEVER THAT THE PROTECTION AGAINST RETALIATORY
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
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]. SUCH 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;  (D)  SUCH  ACTIVITY  COULD  REASONABLY BE EXPECTED TO LEAD TO
ENDANGERING THE WELFARE OF A MINOR; (E) THE EMPLOYEE REASONABLY BELIEVES
THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN PHYSICAL  HARM  TO  THE
EMPLOYEE  OR  ANY  OTHER PERSON; OR (F) THE EMPLOYEE REASONABLY BELIEVES
THAT THE SUPERVISOR IS ALREADY AWARE OF THE  ILLEGAL  BUSINESS  ACTIVITY
AND WILL NOT CORRECT SUCH ACTIVITY.
  4.  Violation;  remedy.  (a) An employee who has been the subject of a
retaliatory [personnel] action in violation of this section  may  insti-
tute  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
county in which the complainant resides, or in the county in  which  the
employer  has  its principal place of business.  IN ANY SUCH ACTION, THE
PARTIES SHALL BE ENTITLED TO A JURY TRIAL.
  (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.] EXCEPT
AS  OTHERWISE  PROVIDED  IN THIS SECTION, A VIOLATION OF THIS SECTION IS
ESTABLISHED WHEN THE COMPLAINANT DEMONSTRATES THAT A  MOTIVATING  FACTOR
FOR  THE  RETALIATORY  ACTION  VIOLATES SUBDIVISION TWO OF THIS SECTION.
REMEDIES FOR VIOLATION OF SUBDIVISION  TWO  OF  THIS  SECTION  SHALL  BE
LIMITED  SOLELY  TO  THOSE  PROVIDED  IN  PARAGRAPHS (E), (F) AND (G) OF
SUBDIVISION FIVE OF THIS SECTION IF THE EMPLOYER  DEMONSTRATES  THAT  IT
WOULD  HAVE  TAKEN  THE  SAME ACTION IN THE ABSENCE OF THE IMPERMISSIBLE
MOTIVATING FACTOR. It shall [also] be a defense that the individual  was
an independent contractor.
  [(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.]

S. 3862--A                          4

  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  posi-
tion, OR FRONT PAY IN LIEU THEREOF;
  [(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  AND  FOR  EMOTIONAL
DISTRESS;
  (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; AND
  (G)  A  CIVIL  PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS
AND/OR A LIQUIDATED DAMAGES AWARD EQUAL TO AMOUNTS OF  DAMAGES  PURSUANT
TO  PARAGRAPHS  (C)  AND  (D)  OF THIS SUBDIVISION, IF THE COURT, IN ITS
DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD FAITH IN THE RETALIATO-
RY 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 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
accordance  with this section shall be deemed a waiver of the rights and
remedies available  under  any  other  contract,  collective  bargaining
agreement, 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] SUBDIVISIONS four AND
FIVE 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, PENALIZE,
THREATEN OR DISCRIMINATE AGAINST, or take other  disciplinary  or  other
[adverse  personnel  action]  ACT  OF REPRISAL against a public employee
regarding the employee's employment because the employee: (I)  discloses
TO  A  PUBLIC BODY OR THREATENS TO MAKE A DISCLOSURE TO A PUBLIC BODY OR
SUPERVISOR IF THE EMPLOYER DOES NOT REMEDY THE IMPROPER  CONDUCT,  to  a
governmental  body  information[:  (i)]  regarding a violation of a law,
rule or regulation which violation creates [and] OR presents a  substan-
tial  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-

S. 3862--A                          5

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 VIOLATION OR IMPROPER
GOVERNMENTAL ACTION; OR (III) OBJECTS TO, OR REFUSES TO PARTICIPATE  IN,
ANY SUCH VIOLATION OR IMPROPER GOVERNMENTAL ACTION.
  (b)  THE  PROTECTION  AGAINST  RETALIATORY ACTION PROVIDED IN SUBPARA-
GRAPHS (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 INFOR-
MATION 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
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 APPOINTING AUTHORITY OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF
EVIDENCE OR OTHER CONCEALMENT OF THE IMPROPER  GOVERNMENTAL  ACTION;  OR
(IV)  SUCH  ACTIVITY 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, AND 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
ADVERSE 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-

S. 3862--A                          6

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] ion 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
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.

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