What's happening
This bill expands whistleblower protections for employees and former employees, clarifies definitions, extends reporting rights, and increases remedies for retaliation.
Why it matters
Broader Definitions and Coverage. The bill expands who is protected (including former employees and applicants), what conduct is covered (adding threats to disclose, refusals to participate, and actions outside official job duties), and what counts as illegal activity or improper governmental action. This means more people and situations are included under whistleblower protections, making it harder for employers to claim exceptions.
Lower Barriers and Stronger Remedies. Employees now only need a reasonable, good-faith belief that wrongdoing occurred, and the definition of retaliation includes any form of discrimination or penalty. Legal remedies are expanded: reinstatement, front pay, compensatory and emotional damages, attorneys’ fees, civil penalties, and possible liquidated damages for bad-faith employer conduct. This increases both employer liability and the potential recovery for whistleblowers.
Clearer Process and Fewer Loopholes. The bill tightens requirements for employer notification before going public but also provides explicit exceptions (e.g., imminent danger, risk of evidence destruction, harm to minors, or when the employer fails to post notice). Employers must now conspicuously post whistleblower rights, making it harder for them to claim ignorance or procedural missteps as a defense.
Enhanced Access to Justice. The statute of limitations for whistleblower suits is doubled from one to two years, and employees get the right to a jury trial. The bill also clarifies that pursuing action under this law does not waive other legal rights, allowing whistleblowers to seek remedies elsewhere if needed. This makes it easier for employees to seek and obtain justice if they face retaliation.
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Who cares
Headline styles
Protect Whistleblowers from Retaliation
Plain English, a few words. Used as the page title.
Sponsors
3 Co-sponsors
History
- Referred to labor
- Referred to labor
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Protect Whistleblowers from Retaliation
In Senate Committee · Labor · Sponsor Michael Benedetto
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
1887
2017-2018 Regular Sessions
IN SENATE
January 11, 2017
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 Assembly, 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:
§ 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: (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 [popularly-elected] elected local governmental body, or any member or employee 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.
LBD01270-01-7
S. 1887 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, 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 [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 organization 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 regulation] 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 individual, 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, 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 business activity[, policy or practice in violation of a law, rule or regulation].
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
S. 1887 3
[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 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 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;
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(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 remuneration; [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 retaliatory 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 diminish 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.
§ 2. Subdivision 4 of section 741 of the labor law, as added by chapter 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.
§ 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 chapter 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 substantial 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 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
S. 1887 5
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 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 governmental action.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
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".
Read the full memo (1,316 words)
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 ca 1.492 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.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.