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This entry was published on 2021-11-05
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SECTION 740
Retaliatory personnel action by employers; prohibition
Labor (LAB) CHAPTER 31, ARTICLE 20-C
* § 740. Retaliatory personnel 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
remuneration.

(b) "Employer" means any person, firm, partnership, institution,
corporation, or association that employs one or more employees.

(c) "Law, rule or regulation" includes any duly enacted statute or
ordinance or any rule or regulation promulgated pursuant to any federal,
state or local statute or ordinance.

(d) "Public body" includes the following:

(i) the United States Congress, any state legislature, or any
popularly-elected local governmental body, or any member or employee
thereof;

(ii) any federal, state, or local judiciary, 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,
prosecutorial office, or police or peace officer.

(e) "Retaliatory personnel action" means the discharge, suspension or
demotion of an employee, or other adverse employment action taken
against an employee in the terms and conditions of employment.

(f) "Supervisor" means any individual within an employer's
organization who has the authority to direct and control the work
performance of the affected employee; or who has managerial authority to
take corrective action regarding the violation of the law, rule or
regulation 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.

2. Prohibitions. An employer shall not take any retaliatory personnel
action against an employee because such employee does any of the
following:

(a) discloses, or threatens to disclose to a supervisor or to a public
body an 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; or

(c) objects to, or refuses to participate in any such activity, policy
or practice in violation of a law, rule or regulation.

3. Application. The protection against retaliatory personnel action
provided by paragraph (a) of subdivision two of this section pertaining
to disclosure to a public body shall not apply to an employee who makes
such disclosure to a public body unless the employee has brought the
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.

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 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.

(c) It shall be a defense to any action brought pursuant to this
section that the personnel action was predicated upon grounds other than
the employee's exercise of any rights protected by this section. It
shall also be a defense that the individual was an independent
contractor.

(d) Notwithstanding the provisions of paragraphs (a) and (c) of this
subdivision, a health care employee who has been the subject of a
retaliatory action by a health care employer in violation of section
seven hundred forty-one of this article may institute a civil action in
a court of competent jurisdiction for relief as set forth in subdivision
five of this section within two years after the alleged retaliatory
personnel action was taken. In addition to the relief set forth in that
subdivision, the court, in its discretion, based upon a finding that the
employer acted in bad faith in the retaliatory action, may assess the
employer a civil penalty of an amount not to exceed ten thousand
dollars, to be paid to the improving quality of patient care fund,
established pursuant to section ninety-seven-aaaa of the state finance
law.

5. Relief. In any action brought pursuant to subdivision four of this
section, the court may order relief as follows:

(a) an injunction to restrain continued violation of this section;

(b) the reinstatement of the employee to the same position held before
the retaliatory personnel action, or to an equivalent position;

(c) the reinstatement of full fringe benefits and seniority rights;

(d) the compensation for lost wages, benefits and other remuneration;
and

(e) the payment by the employer of reasonable costs, disbursements,
and attorney's fees.

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
diminish the rights, privileges, or remedies of any employee under any
other law or regulation or under any collective bargaining agreement or
employment contract.

* NB Effective until January 26, 2022

* § 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
remuneration, including former employees, or natural persons employed as
independent 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
executive 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;

(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,
prosecutorial 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
immigration 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
organization who has the authority to direct and control the work
performance of the affected employee; or who has managerial authority to
take corrective action regarding the violation of the law, rule or
regulation of which the employee complains.

2. Prohibitions. An employer shall not take any retaliatory action
against an employee, whether or not within the scope of the employee's
job duties, because such employee does any of the following:

(a) discloses, or threatens to disclose to a supervisor or to a public
body an 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 activity,
policy or practice by such employer; or

(c) objects to, or refuses to participate in any such activity, policy
or practice.

3. Application. 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 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 employer notification shall not be
required where: (a) there is an imminent and serious danger to the
public health or safety; (b) the employee reasonably believes that
reporting to the supervisor would result in a destruction of evidence or
other concealment of the activity, policy or practice; (c) such
activity, policy or practice could reasonably be expected to lead to
endangering the welfare of a minor; (d) the employee reasonably believes
that reporting to the supervisor would result in physical harm to the
employee or any other person; or (e) the employee reasonably believes
that the supervisor is already aware of the activity, policy or practice
and will not correct such activity, policy or practice.

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.

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 action, or to an equivalent position, or front pay in
lieu thereof;

(c) the reinstatement of full fringe benefits and seniority rights;

(d) the compensation for lost wages, benefits and other remuneration;

(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

(g) the payment by the employer of punitive damages, if the violation
was willful, malicious or wanton.

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
diminish 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.

* NB Effective January 26, 2022