NY State Senate Bill 2015-S7858

Senate Bill S7858

2015-2016 Legislative Session

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

download bill text pdf

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 17, 2016	referred to labor

2015-S7858 (ACTIVE) - Details

See Assembly Version of this Bill:: A5754
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§740 & 741, Lab L; amd §75-b, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A5696
2017-2018: S1887, A5757
2019-2020: S3683, A7384
2021-2022: S725, A5144
2023-2024: S5403

2015-S7858 (ACTIVE) - Summary

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

2015-S7858 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7858

 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 OR GENERAL IDEA OF BILL :

The bill provides greater protections for "whistleblower" employees
who disclose information about illegal activities of their employers.
This bill expands whistleblower protections to include public
employees & former employees.

 SUMMARY OF SPECIFIC 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 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
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 whistleblower 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. 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-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 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 employer's 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.

 PRIOR LEGISLATIVE HISTORY :

2015: A.5754 (Benedetto) Advanced to third reading ca1.492
2014: A.5696-A (Benedetto) passed the Assembly/A.3682-A (Klein) Died
in Senate
2013: A.5696-A (Benedetto) Passed the Assembly, Died in Senate

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

This bill is fiscally neutral.

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

2015-S7858 (ACTIVE) - Bill Text download pdf

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

                                  7858

                            I N  S E N A T E

                              May 17, 2016
                               ___________

Introduced  by  Sen.  AVELLA -- 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;
  (iii)  any  federal,  state,  or  local regulatory, administrative, or
public agency or authority, or instrumentality thereof; [or]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09700-01-5

S. 7858                             2

  (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,
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

S. 7858                             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]. 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.]
  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;

S. 7858                             4

  [(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-
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)

S. 7858                             5

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-
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

S. 7858                             6

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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