Protect Workers From Retaliation

6 Co-sponsors

• Alessandra Biaggi
• David Carlucci
• Andrew Gounardes
• Robert Jackson
• Todd Kaminsky
• John Liu

Title of bill

An act to amend the labor law, in relation to retali- atory personnel actions by employers

Justification

As was pointed out by the Court of Appeals in 1996, New York maintains two different standards for providing a remedy to employees who have been unlawfully retaliated against by their employers. Bordell v. Gener- al Electric Co., 88 N.Y.2d 869, 871.

As the Court held, for non-public employees, proof of an actual violation of law is required in order to sustain a cause of action pred- icated under Labor Law Sec. 740, New York's anti-retaliation law. In other words, in order for an employee to claim that they were wrongfully retaliated against by an employer, the employee must demonstrate that he/she disclosed an action violation of law. See, ch. 660, L.1984, which also added Civil Service Law § 75-b as applicable to public employees.

However, the Civil Rights Law was amended in 1986 to "widen the protection for a public employee" by providing protection for disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action". Ch.899, L. 1986, § 1 (emphasis supplied).

There is no reason to have two disparate standards for the maintenance of retaliation actions, and no reason to afford public employees with a greater remedy than possessed by employees in the private sector.

Thus, the reasonableness standard set forth in the Civil Service Law warrants a conforming amendment to the Labor Law. It should be suffi- cient that an employee establish that he/she reasonably believed that the employer was violating the law, not that the law was actually violated, a much more difficult standard for the employee to overcome in order to maintain an action alleging unlawful retaliation.

This bill also makes unlawful retaliation causes of action available to independent contractors. The importance of this aspect of the bill was highlighted by the numerous allegations of sexual harassment lodged against Harvey Weinstein by aspiring actresses, some of whom were employed as independent contractors. It is submitted that there is no valid reason why an actress employed as an independent contractor who refused sexual advances made by a Harvey Weinstein-type individual, and who had her movie role deleted or limited, should not be able to bring an action alleging wrongful retaliation merely by virtue of the fact that she was not a full-time employee.

The bill also permits the recovery of punitive damages if the employer was found to violate the anti-retaliation law in a "malicious or wanton" manner. This is consistent with existing law, which permits a court to award punitive damages for only the most egregious types of conduct. However, where such conduct occurs in the employment setting, there is no reason not to afford victims with the same relief which is afforded to the victims of such conduct in non-employment settings.

Legislative history

2018: A.9590 (Referred to Labor)

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the thirtieth day after it shall have become a law; provided, however, that effective immediately, the addi- tion, amendment and/or repeal or regulation necessary for the implemen- tation of this act on its effective date are authorized to be made by the Commissioner of Labor of the state of New York on or before such effective date.