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

                                  6971

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              April 6, 2011
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred 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.  This act shall be known and may be cited as the "whistle-
blower protection act".
  S 2. 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 para-
graph (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: (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 [popu-
larly-elected] ELECTED local governmental body, or any member or employ-
ee thereof;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04117-01-1

              

A. 6971                             2

  (ii) any federal, state, or local [judiciary] 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; [or]
  (iv) any federal, state, or local law enforcement agency, prosecutori-
al 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 other adverse employment action taken against  an  employee
in the terms and conditions of employment.
  (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] AN employee; or who has [managerial]  authority  to  take
corrective  action  regarding  the  [violation of the law, rule or regu-
lation] 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.
  (H)  "AGENT"  MEANS  ANY  INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPO-
RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
  (I) "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, WHICH IS IN VIOLATION  OF  ANY
LAW, RULE OR REGULATION.
  2.  Prohibitions. An employer shall not take any retaliatory personnel
action against an employee because such employee does any of the follow-
ing:
  (a) discloses, or threatens to disclose to a supervisor or to a public
body 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  BUSI-
NESS  activity[, policy or practice in violation of a law, rule or regu-
lation].
  3. Application. The protection against  retaliatory  personnel  action
provided  by 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  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] MADE A GOOD FAITH EFFORT
TO NOTIFY HIS OR HER EMPLOYER BY BRINGING the  ILLEGAL  BUSINESS  activ-
ity[, policy or practice in violation of law, rule or regulation] to the
attention  of  a  supervisor  [of  the  employer]  and has afforded such

A. 6971                             3

employer a reasonable opportunity to correct such activity[,  policy  or
practice].    EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THE
EMPLOYER HAS NOT COMPLIED WITH THE PUBLICATION REQUIREMENTS OF  SUBDIVI-
SION  EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER
TO THE PUBLIC HEALTH OR SAFETY; OR (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.
  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 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] subdivision FIVE OF THIS SECTION, the court, in  its  discretion,
based upon a finding that the employer acted in bad faith in the retali-
atory  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)] (B) the reinstatement of  full  fringe  benefits  and  seniority
rights;
  [(d)] (C) the compensation for lost wages, benefits and other remuner-
ation; [and
  (e)] (D) COMPENSATORY DAMAGES FOR ECONOMIC LOSS;
  (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 WITH RESPECT TO THE EMPLOYEE; AND
  (G)  A  CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS,
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 REASONABLE basis in  law  or  in
fact.

A. 6971                             4

  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 accord-
ance  with this section shall be deemed a waiver of the rights and reme-
dies available under any other contract,  collective  bargaining  agree-
ment, 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.
  S  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 chap-
ter 899 of the laws of 1986, is amended to read as follows:
  2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE,  PENALIZE
OR  DISCRIMINATE  AGAINST,  or  take other disciplinary or other adverse
personnel action against a  public  employee  regarding  the  employee's
employment because the employee:
  (I)  discloses  OR  THREATENS  TO  DISCLOSE  to  a  governmental  body
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] 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 employ-
er or employee, which is undertaken in the performance 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.];
  (II)  PROVIDES  INFORMATION  TO,  OR TESTIFIES BEFORE, ANY PUBLIC BODY
CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY INTO  ANY  VIOLATION  OR
ACTION DESCRIBED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH; OR
  (III)  OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY SUCH VIOLATION OR
ACTION.
  (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL  ACTION  PROVIDED  IN
PARAGRAPH  (A)  OF  THIS  SUBDIVISION SHALL APPLY TO ANY EMPLOYEE WHO IN
GOOD FAITH REASONABLY BELIEVES THAT A VIOLATION OR IMPROPER GOVERNMENTAL
ACTION HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOY-
EE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
  (C) Prior  to  disclosing  information  pursuant  to  [paragraph  (a)]
SUBPARAGRAPH (I) OF PARAGRAPH (A) of this subdivision, an employee shall
have made a good faith effort to provide the appointing authority or his
or  her  designee  the information to be disclosed and shall provide the
appointing authority or designee a reasonable time to  take  appropriate
action  unless  there is imminent and serious danger to public health or
safety. For the purposes of  this  subdivision,  an  employee  who  acts
pursuant to this paragraph shall be deemed to have disclosed information
to  a governmental body under paragraph (a) of this subdivision. NOTIFI-
CATION TO THE APPOINTING AUTHORITY OR DESIGNEE  SHALL  NOT  BE  REQUIRED
WHERE:  (I)  THE  PUBLIC  EMPLOYER HAS NOT COMPLIED WITH THE PUBLICATION
REQUIREMENTS OF SUBDIVISION FIVE OF THIS SECTION; (II) THERE IS AN IMMI-
NENT AND SERIOUS DANGER TO THE PUBLIC HEALTH OR  SAFETY;  OR  (III)  THE
EMPLOYEE  REASONABLY BELIEVES THAT REPORTING TO THE APPOINTING AUTHORITY
OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER  CONCEAL-
MENT OF THE ILLEGAL BUSINESS ACTIVITY.

A. 6971                             5

  (D) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCEDURE,
ACTION  OR  FAILURE TO ACT 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 IS WITHIN THE
SCOPE OF SUCH PERSON'S EMPLOYMENT, AND WHICH IS IN VIOLATION OF ANY LAW,
RULE  OR  REGULATION.  "LAW,  RULE OR REGULATION" INCLUDES: (I) ANY DULY
ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE; (II) ANY  RULE  OR
REGULATION  PROMULGATED  PURSUANT  TO  ANY SUCH STATUTE OR ORDINANCE; OR
(III) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER.
  S 4. Paragraph (c) of subdivision 3  of  section  75-b  of  the  civil
service  law, as added by chapter 660 of the laws of 1984, is amended to
read as follows:
  (c) [Where] IN ADDITION TO OR IN LIEU OF THE PROCEDURES SET  FORTH  IN
PARAGRAPHS  (A) AND (B) OF THIS SUBDIVISION, OR WHERE an employee is not
subject to any of the provisions of [paragraph (a) or (b) of this subdi-
vision] SUCH PARAGRAPHS, the employee may commence an action in a  court
of  competent  jurisdiction  under the same terms and conditions AND FOR
THE SAME RELIEF as set forth in article twenty-C of the labor law.
  S 5. Section 75-b of the civil service law is amended by adding a  new
subdivision 5 to read as follows:
  5.  EVERY PUBLIC 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.
  S  6.  This  act shall take effect on the ninetieth day after it shall
have become a law.