A. 4148 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, 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 ANY other [adverse employment action] ACT OF REPRISAL 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] IMPROPER 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) "IMPROPER 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],
AGENT, INTERNAL AGENCY, OR TO THE public [body] INFORMATION ABOUT an
IMPROPER 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 safe-
ty, 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] IMPROPER BUSINESS ACTIV-
ITY; or
(c) objects to, or refuses to participate in any [such] IMPROPER 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 [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] SUBDIVISION TWO OF THIS SECTION SHALL APPLY TO ANY EMPLOYEE
WHO IN GOOD FAITH REASONABLY BELIEVES THAT AN IMPROPER BUSINESS ACTIVITY
HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN
GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
4. Violation; remedy. (a) An employee who has been the subject of a
retaliatory personnel action in violation of this section may institute
A. 4148 3
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] PATIENT SAFETY CENTER ACCOUNT, established pursuant
to section [ninety-seven-aaaa] NINETY-SEVEN-IIII 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 THIRTY 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 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 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.
7. PUBLICATION. EVERY EMPLOYER SHALL INFORM EMPLOYEES OF THEIR
PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A
A. 4148 4
NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY
ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
AND APPLICANTS FOR EMPLOYMENT.
S 2. Section 741 of the labor law, as added by chapter 24 of the laws
of 2002 and paragraph (b) of subdivision 1 as amended by chapter 505 of
the laws of 2003, is amended to read as follows:
S 741. Prohibition; health care employer who penalizes employees
because of complaints of employer violations. 1. Definitions. As used in
this section, the following terms shall have the following meanings:
(a) "Employee" means any person who performs health care services for
and under the control and direction of any public or private employer
which provides health care services for wages or other remuneration.
(b) "Employer" means any partnership, association, corporation, the
state, or any political subdivision of the state which: (i) provides
health care services in a facility licensed pursuant to article twenty-
eight or thirty-six of the public health law; (ii) provides health care
services within a primary or secondary public or private school or
public or private university setting; (iii) operates and provides health
care services under the mental hygiene law or the correction law; or
(iv) is registered with the department of education pursuant to section
sixty-eight hundred eight of the education law.
(c) "Agent" means any individual, partnership, association, corpo-
ration, or group of persons acting on behalf of an employer.
(d) "Improper quality of patient care" means, with respect to patient
care, any practice, procedure, action or failure to act of an employer
which violates any law, rule, regulation or declaratory ruling adopted
pursuant to law, where such violation relates to matters which may pres-
ent a substantial and specific danger to public health or safety or a
significant threat to the health of a specific patient.
(e) "Public body" means:
(1) the United States Congress, any state legislature, or any elected
local governmental body, or any member or employee thereof;
(2) any federal, state or local court, or any member or employee ther-
eof, any grand or petit jury;
(3) any federal, state or local regulatory, administrative or public
agency or authority, or instrumentality thereof;
(4) any federal, state or local law enforcement agency, prosecutorial
office, or police or peace officer;
(5) any federal, state or local department of an executive branch of
government; or
(6) any division, board, bureau, office, committee or commission of
any of the public bodies described in subparagraph one, two, three, four
or five of this paragraph.
(f) "Retaliatory action" means the discharge, suspension, demotion[,
penalization] or discrimination against an employee, or [other adverse
employment action taken] ANY ACT OF REPRISAL against an employee [in the
terms and conditions of employment].
(g) "Supervisor" means any person within an employer's organization
who has the authority to direct and control the work performance of an
employee, or who has the authority to take corrective action regarding
the violation of a law, rule or regulation to which an employee submits
a complaint.
(H) "LAW, RULE OR REGULATION" INCLUDES:
(1) ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE;
(2) ANY RULE OR REGULATION PROMULGATED PURSUANT TO ANY STATUTE OR
ORDINANCE;
A. 4148 5
(3) ANY INTERNAL RULE PROMULGATED BY THE EMPLOYER PURSUANT TO ANY
STATUTE OR ORDINANCE; OR
(4) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER.
2. Retaliatory action prohibited. Notwithstanding any other provision
of law, no employer shall take retaliatory action against any employee
because the employee does any of the following:
(a) discloses or threatens to disclose to a supervisor, AGENT or to a
public body an activity, policy or practice of the employer or agent
that the employee, in good faith, reasonably believes constitutes
improper quality of patient care; [or]
(b) 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 PARAGRAPH (A) OF SUBDIVISION TWO
OF SECTION SEVENTY-FIVE-B OF THE CIVIL SERVICE LAW; OR
(C) objects to, or refuses to participate in any activity, policy or
practice of the employer or agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care.
3. [Application. The protection against retaliatory personnel action
provided by subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care to the atten-
tion of a supervisor and has afforded the employer a reasonable opportu-
nity to correct such activity, policy or practice. This subdivision
shall not apply to an action or failure to act described in paragraph
(a) of subdivision two of this section where the improper quality of
patient care described therein presents an imminent threat to public
health or safety or to the health of a specific patient and the employee
reasonably believes in good faith that reporting to a supervisor would
not result in corrective action.
4. Enforcement. A health care employee may seek enforcement of this
section pursuant to paragraph (d) of subdivision four of section seven
hundred forty of this article.
5.] Relief. In any court action brought pursuant to this section it
shall be a defense that the personnel action was predicated upon grounds
other than the employee's exercise of any rights protected by this
section.
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] ACT OF REPRISAL against a public employee regarding
the employee's employment because the employee:
(I) discloses OR THREATENS TO DISCLOSE to a SUPERVISOR, 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], AGENCY OR TO THE PUBLIC
ANY CONDUCT WHICH constitutes an improper governmental action. ["Improp-
er 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 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 IMPROPER
GOVERNMENTAL ACTION; OR
A. 4148 6
(III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY IMPROPER GOVERN-
MENTAL ACTION.
(b) [Prior to disclosing information pursuant to 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 para-
graph (a) of this subdivision.] 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 EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES
TO BE TRUE.
(C)(I) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCE-
DURE, ACTION OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR AN
AGENT OF SUCH EMPLOYER OR EMPLOYEE, WHETHER OR NOT SUCH ACTION IS WITHIN
THE SCOPE OF SUCH PERSON'S EMPLOYMENT, WHICH IS IN VIOLATION OF ANY LAW,
RULE OR REGULATION.
(II) "LAW, RULE OR REGULATION" INCLUDES: (A) ANY DULY ENACTED FEDERAL,
STATE OR LOCAL STATUTE OR ORDINANCE; (B) ANY RULE OR REGULATION PROMUL-
GATED PURSUANT TO ANY SUCH STATUTE OR ORDINANCE; OR (C) 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
HIGHLY VISIBLE AREAS FREQUENTLY VISITED BY EMPLOYEES AND APPLICANTS FOR
EMPLOYMENT.
S 6. This act shall take effect on the ninetieth day after it shall
have become a law.