NY State Senate Bill 2023-S5403

Senate Bill S5403

2023-2024 Legislative Session

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

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Current 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
Jan 03, 2024	referred to labor
Mar 03, 2023	referred to labor

co-Sponsors

2023-S5403 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §740, Lab L; amd §75-b, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7858
2017-2018: S1887
2019-2020: S3683
2021-2022: S725

2023-S5403 (ACTIVE) - Summary

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

2023-S5403 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5403

SPONSOR: HOYLMAN-SIGAL
 
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:

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 employ-
ee 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 13) Limiting prior
notification to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include under the defi-
nition 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 ille-
gal 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 reason-
ably 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 ille-
gal or improper activities by their employers are given certain
Protections under New York's whistleblower protection law.  Unfortunate-
ly, 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 govern-
ment 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 safe-
ty 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 termi-
nated 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 immi-
nent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business activ-
ities, 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 Whistieblower.
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 "Whistieblower
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 neces-
sary 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.

 
LEGISLATIVE HISTORY:

S.0725 of 2021-2022 (Hoylman): Died in Labor

S.3683-A of 2019-2020 (Hoylman): Died in Labor

A.7384-A of 2019-2020 (Benedetto): Died in Rules

 
FISCAL IMPLICATIONS:

This bill is fiscally neutral.

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

2023-S5403 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5403
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 3, 2023
                                ___________
 
 Introduced by Sens. HOYLMAN-SIGAL, GOUNARDES, KRUEGER, MAYER, SALAZAR --
   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 amended by chapter 522 of
 the laws of 2021, is amended to read as follows:
   § 740. Retaliatory action by employers; prohibition.  1.  Definitions.
 For  purposes of this section, unless the context specifically 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,  including  former employees, or natural persons employed as inde-
 pendent contractors to carry out work in furtherance  of  an  employer's
 business enterprise who are not themselves employers.
   (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 executive order; (ii) any rule or
 regulation  promulgated  pursuant to such statute or ordinance or execu-
 tive order; 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 elected
 local governmental body, or any member or employee thereof;
   (ii) any federal, state, or local 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.
                                                            LBD03466-01-3
 S. 5403                             2

 
   (iii)  any  federal,  state,  or  local regulatory, administrative, or
 public agency or authority, or instrumentality thereof;
   (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 action" means an adverse action taken by an  employer
 or  his  or  her agent to discharge, threaten, penalize, or in any other
 manner discriminate against any employee or former  employee  exercising
 his  or  her rights under this section, including (i) adverse employment
 actions or threats to take such adverse employment  actions  against  an
 employee  in  the  terms  of  conditions of employment including but not
 limited to discharge, suspension, or demotion; (ii) actions  or  threats
 to  take  such  actions  that would adversely impact a former employee's
 current or  future  employment;  or  (iii)  threatening  to  contact  or
 contacting  United States immigration authorities or otherwise reporting
 or threatening to report an employee's suspected  citizenship  or  immi-
 gration  status or the suspected citizenship or immigration status of an
 employee's family or household member, as defined in subdivision two  of
 section  four  hundred  fifty-nine-a  of  the  social services law, to a
 federal, state, or local agency.
   (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  OR  DANGEROUS  BUSINESS ACTIVITY of which the employee
 complains.
   (G) "AGENT" MEANS ANY  INDIVIDUAL,  PARTNERSHIP,  ASSOCIATION,  CORPO-
 RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
   (H) "ILLEGAL OR DANGEROUS BUSINESS ACTIVITY" MEANS ANY PRACTICE, AGENT
 OF SUCH EMPLOYER, TAKEN IN THE COURSE OF THE EMPLOYER'S BUSINESS, WHETH-
 ER  OR  NOT  WITHIN  THE  SCOPE OF EMPLOYMENT OR AGENCY, THAT: (I) IS IN
 VIOLATION OF ANY LAW, RULE OR REGULATION; OR (II) CREATES AND PRESENTS A
 SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC HEALTH OR SAFETY.
   2. Prohibitions. An employer shall not  take  any  retaliatory  action
 against  an employee OR FORMER EMPLOYEE, whether or not within the scope
 of the employee's OR FORMER EMPLOYEE'S job duties, because such employee
 OR FORMER EMPLOYEE does any of the following:
   (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 OR DANGEROUS BUSINESS ACTIVITY,
 INFORMATION ABOUT an ILLEGAL OR DANGEROUS BUSINESS activity[, policy  or
 practice  of  the  employer  that the employee reasonably believes is in
 violation of law, rule or regulation or  that  the  employee  reasonably
 believes poses a substantial and specific danger to the public health or
 safety];
   (b)  provides  information  to,  or  testifies before, any public body
 conducting an investigation, hearing or inquiry into any such ILLEGAL OR
 DANGEROUS BUSINESS activity[, policy or practice by such employer]; or
   (c) objects to, or refuses to participate in  any  [such]  ILLEGAL  OR
 DANGEROUS activity[, policy or practice].
   3.  Application. The protection against retaliatory action provided by
 PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION TWO  OF  THIS  SECTION  SHALL
 S. 5403                             3

 APPLY  TO  ANY  EMPLOYEE  WHO  IN GOOD FAITH REASONABLY BELIEVES THAT AN
 ILLEGAL OR DANGEROUS 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  made  a  good
 faith  effort  to  notify his or her employer by bringing the ILLEGAL OR
 DANGEROUS BUSINESS activity[, policy or practice] 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 employ-
 er  notification  shall  not be required where: (a) ILLEGAL OR DANGEROUS
 BUSINESS; (B) there is an imminent and  serious  danger  to  the  public
 health  or  safety;  [(b)]  (C)  the  employee  reasonably believes that
 reporting to the supervisor would result in a destruction of evidence or
 other concealment of the ILLEGAL OR DANGEROUS activity[, policy or prac-
 tice]; [(c)] (D) such activity, policy or practice could  reasonably  be
 expected  to  lead  to endangering the welfare of a minor; [(d)] (E) the
 employee reasonably believes that  reporting  to  the  supervisor  would
 result  in  physical  harm to the employee or any other person; or [(e)]
 (F) the employee reasonably believes  that  the  supervisor  is  already
 aware  of  the  activity, policy or practice and will not correct [such]
 THE ILLEGAL OR DANGEROUS activity[, policy or  practice]  AND  WILL  NOT
 CORRECT SUCH ACTIVITY.
   4.  Violation;  remedy.  (a) An employee who has been the subject of a
 retaliatory 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  two  years  after  the  alleged
 retaliatory action was taken.
   (b) Any action authorized by this section may be brought in the county
 in which the alleged retaliatory 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 retaliatory 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 MOTIVAT-
 ING  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.
   5.  Relief. In any action brought pursuant to subdivision four of this
 section, the court may order relief as follows, WITH MONETARY AMOUNTS AS
 DETERMINED BY THE JURY OTHER THAN UNDER PARAGRAPH (E)  AND/OR  PARAGRAPH
 (G) OF THIS SUBDIVISION:
   (a) [an injunction to restrain continued violation of this section;
   (b)]  the  reinstatement  of  the  employee  to the same position held
 before the retaliatory action, or to an equivalent  position,  or  front
 pay in lieu thereof;
   [(c)]  (B)  the  reinstatement  of  full fringe benefits and seniority
 rights;
 S. 5403                             4

   [(d)] (C) the compensation for lost wages, benefits and other remuner-
 ation;
   (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) 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, UNLESS  THE  COURT  FINDS
 THAT  THE  EMPLOYER  ACTED  IN  GOOD  FAITH  IN  THE RETALIATORY ACTION;
 [and/or]
   (g) the payment by the employer of punitive damages, if the  violation
 was willful, malicious or wanton[.]; AND/OR
   (H)  AN  INJUNCTION  TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF
 THIS SECTION.
   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.
   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.
   § 2. Subdivisions 2 and 3 of section 75-b of the civil service law, as
 added by chapter 660 of the laws of 1984, paragraph (a) of subdivision 2
 as  amended  by  chapter  899 of the laws of 1986, are amended and a new
 subdivision 5 is added 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)
 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
 S. 5403                             5
 
 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
 GOVERNMENTAL BODY UNDER PARAGRAPH (A) OF THIS SUBDIVISION.     NOTIFICA-
 TION  TO THE   APPOINTING   AUTHORITY  OR DESIGNEE SHALL NOT BE REQUIRED
 WHERE:  (I) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY  SUBDIVI-
 SION  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  GOVERN-
 MENTAL  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: (I) IN VIOLATION OF ANY
 LAW, RULE OR REGULATION REGARDING GOVERNMENTAL ACTION; OR  (II)  CREATES
 AND  PRESENTS  A SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC HEALTH OR
 SAFETY. "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED  FEDER-
 AL,  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.
   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
 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
 S. 5403                             6
 
 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 permit-
 ted 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.
   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.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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Senate Bill S5403

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Sponsored By

Brad Hoylman-Sigal

Current Bill Status - In Senate Committee Labor Committee

co-Sponsors

Andrew Gounardes

Liz Krueger

Shelley B. Mayer

Julia Salazar

2023-S5403 (ACTIVE) - Details

2023-S5403 (ACTIVE) - Summary

2023-S5403 (ACTIVE) - Sponsor Memo

2023-S5403 (ACTIVE) - Bill Text download pdf

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