NY State Senate Bill 2009-S2838

Archive: Last 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 06, 2010	referred to labor
Mar 04, 2009	referred to labor

2009-S2838 (ACTIVE) - Details

See Assembly Version of this Bill:: A6023
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §740, Lab L; amd §75-b, Civ Serv L

2009-S2838 (ACTIVE) - Summary

Expands prohibition against retaliatory action by an employer against an employee to include instances where an employee discloses or threatens to disclose to a supervisor or public body, an activity, policy or practice of the employer's that the employee reasonably believes to be in violation of the law or which poses a serious danger to public health or safety; extends 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 a supervisor prior to disclosure to the media and is not otherwise prohibited by law from making such disclosure; defines the term "news media" to include a newspaper, magazine, news agency, press association, wire service, professional journalist or newscaster.

2009-S2838 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER : S2838

 TITLE :
An act to amend the labor law and the civil service law, in relation
to protection of employees against retaliatory action by employers

 PURPOSE :
This bill would strengthen the protections available to individuals
who, while employed in public service as well as private business and
industry, choose to go public with information regarding activities of
their employer which are reasonably believed to be a violation of law
or which pose a serious danger to public health or safety.

 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.

2009-S2838 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2838

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 4, 2009
                               ___________

Introduced  by  Sen.  STACHOWSKI  -- 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 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 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,
paragraph  (d)  of  subdivision  4 as added by chapter 24 of the laws of
2002, is amended to read as follows:
  S 740. Retaliatory personnel  action  by  employers;  prohibition.  1.
Definitions.    For purposes of this section, unless the context specif-
ically 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.
  (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 popular-
ly-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, prosecutori-
al 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09531-01-9

S. 2838                             2

  (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  employee; or who has managerial authority to take correc-
tive action regarding the [violation of the  law,  rule  or  regulation]
ACTIVITY, POLICY, OR PRACTICE 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, OR A PERSON ACTING  ON
BEHALF OF 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  [which
violation  creates and presents a substantial and specific danger to the
public health or safety], THAT POSES A SERIOUS DANGER TO  PUBLIC  HEALTH
OR SAFETY, or which constitutes health care fraud;
  (b) provides information to, or testifies before, OR OTHERWISE COOPER-
ATES  WITH  any  public  body  conducting  an  investigation, hearing or
inquiry into any [such] ACTIVITY, POLICY OR PRACTICE  OF  SUCH  EMPLOYER
THAT  THE EMPLOYEE REASONABLY BELIEVES IS IN violation of a law, rule or
regulation [by such employer] OR INTO ANY ACTIVITY, POLICY  OR  PRACTICE
OF  SUCH  EMPLOYER  WHICH  POSES  A  SERIOUS  DANGER TO PUBLIC HEALTH OR
SAFETY; or
  (c) objects to, or refuses to  participate  in  any  [such]  activity,
policy  or  practice  WHICH  THE  EMPLOYEE  REASONABLY  BELIEVES  IS  in
violation of a law, rule or regulation OR WHICH POSES AN  IMMEDIATE  AND
SERIOUS DANGER TO PUBLIC HEALTH OR SAFETY.
  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 coun-
ty 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 contrac-
tor.
  (d) Notwithstanding the provisions of paragraphs (a) and (c)  of  this
subdivision, a health care employee who has been the subject of a retal-
iatory  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

S. 2838                             3

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]  DAMAGES, 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 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[; 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].
  S 2. Subdivision 1 of section 75-b of the civil service law is amended
by adding a new paragraph (e) to read as follows:
  (E)  "NEWS  MEDIA"  SHALL MEAN NEWSPAPER, MAGAZINE, NEWS AGENCY, PRESS
ASSOCIATION, WIRE SERVICE, PROFESSIONAL JOURNALIST OR NEWSCASTER AS SUCH
TERMS ARE DEFINED IN SUBDIVISION (A) OF SECTION  SEVENTY-NINE-H  OF  THE
CIVIL RIGHTS LAW.
  S  3.  Paragraph  (a)  of  subdivision  2 of section 75-b of the civil
service law, as amended by chapter 899 of the laws of 1986,  is  amended
to read as follows:
  (a)  A public employer shall not dismiss or take other disciplinary or
other adverse personnel action against a public employee  regarding  the
employee's  employment  because the employee discloses to a governmental
body OR THE NEWS MEDIA information: (i) regarding a violation of a  law,
rule  or  regulation  which violation creates and 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 consti-
tutes an improper governmental action, PROVIDED, HOWEVER,  THAT  IN  THE
CASE  OF DISCLOSURE OF INFORMATION TO THE NEWS MEDIA, SUCH DISCLOSURE OF
INFORMATION IS NOT OTHERWISE PROHIBITED BY LAW.  "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  perform-
ance  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.
  S  4.  This  act  shall  take  effect  on  the first of September next
succeeding the date on which it shall have become a law and shall  apply
to any retaliatory personnel action taken on or after such date.

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Senate Bill S2838

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

2009-S2838 (ACTIVE) - Details

2009-S2838 (ACTIVE) - Summary

2009-S2838 (ACTIVE) - Sponsor Memo

2009-S2838 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2838

Share this bill

Sponsored By

William T. Stachowski

Archive: Last Bill Status - In Senate Committee Labor Committee

2009-S2838 (ACTIVE) - Details

2009-S2838 (ACTIVE) - Summary

2009-S2838 (ACTIVE) - Sponsor Memo

2009-S2838 (ACTIVE) - Bill Text download pdf

Comments