Protects employees against retaliatory action by employers

Summary of provisions

This bill amends Labor Law §740 (the section of New York's "Whistleblower Law" that covers private employers) to make its provisions more consistent with those under Civil Service Law §75-b (the section of the "Whistleblower Law" that covers public employers) by expanding its prohibition against retaliatory action TO INCLUDE instances where the employee discloses or threatens to disclose to a supervisor or public body an activity, policy or practice of the employer that the employee reasonably believes to be in violation of the law or which poses a serious danger to public health or safety.

Concurrently, this bill will amend Civil Service Law §75-b to extend protections against retaliatory disciplinary action by a public employer against a public employee who discloses information to the news media, provided the employee has made a good faith effort to provide the information to be disclosed to the appointing authority prior to disclosure to the media and is not otherwise prohibited by law. "News media" includes newspaper, magazine, news agency, press association, wire service, professional journalist or newscaster.

Justification

In 1984, the Legislature enacted the "Whistleblower Law" which protects employees who refuse to comply with their employer's instructions to violate the law or who disclose to governmental authorities employer wrongdoing from retaliatory action by their employer (L.1984, Ch.660). That law, however, was limited to employees who disclose employer activity which was both in violation of law and posed a serious and substantial threat to public health and safety.

In 1986, the Legislature amended the Civil Service Law to extend those protections to the same employees who disclose information regarding any activity which the employee reasonably believes is a violation of law, rule or regulation, whether or not the violation endangers the public health and safety (L.1986, Ch.899). That amendment did not, however, afford similar protections to private sector employees. ( SEE e.g., BURDELL V. GENERAL ELECTRIC CO. , 1995 WL 83729 (3/2/95), holding that §740 does not impose a "reasonable belief" standard.) This particular legislation addresses that need through comparable amendments to the Labor Law.

This bill provides:

1. protection to public and non-public employees who refuse to participate in such activities and are sometimes severely penalized by their employers for their refusal;

2. safeguards to those same employees when disclosures are made by other persons acting on their behalf, as well as those employees who report illegal or dangerous activities themselves;

3. elimination of the existing election of remedies provision, which unfairly requires employees to waive remedies available under other laws; 4. protections to public employees who make their information known to the news media as a result of inaction or disregard by their employer.

Expansion of whistleblower protections is as necessary in the private sector as in the public sector. The present law offers little or no protection in situations such as those of brokers who reveal important evidence of insider trading, accountants who are asked to falsify tax records, and employees of government contractors who disclose falsifications of records concerning minority businesses. Nor does it necessarily protect the employee who "blows the whistle" in the illegal substitution of inferior materials, because the resultant harm to the public may not be both substantial AND specific (the employee may not know whether the substitution is likely to cause great harm and may want to let the appropriate governmental regulator make that determination). The private sector has no internal mechanism to investigate and prosecute the occasional employer who engages in illegal or dangerous activities. Moreover, governmental commissions and agencies investigating such private sector employers are dependent on the cooperation of precisely those that this legislation is designed to protect; that is, employees who are willing to "blow the whistle" on otherwise undiscoverable practices.

The news media frequently plays an important role in the investigation of charges of governmental mismanagement and corruption. Disclosure of this information is a primary step in curbing misconduct. This bill protects from retaliatory action public employees who go to the media with their information, aiding in disclosing and deterring misconduct. Disclosure of this information to the media is often an essential step in curbing misconduct.

Prior legislative history

2007-08: S.2953 Died in Labor 2005-06: S.2166/4252 Died in Labor 2003-04: S.1286 No action. 2001-02: S.1592 No action. 1999-00: S.1376 Died in Labor Committee 1997-98: S.1672 Died in Labor 1995-96: S.3565 Died in Labor 1993-94: S.5246 Died in Civil Service and Pensions 1991-92: S.5624 Died in Civil Service and Pensions 1989-90: S.4220 Died in Civil Service and Pensions

Fiscal implications

None.

Effective date

This act shall take effect on the first of September next succeeding the date on which it shall have become a law.