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

                                 5696--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                              March 6, 2013
                               ___________

Introduced  by  M.  of  A. BENEDETTO, BRONSON, LUPARDO, CAHILL, HEASTIE,
  FAHY, SKOUFIS, GUNTHER, HEVESI, STECK, CAMARA -- Multi-Sponsored by --
  M. of A. GLICK, GOTTFRIED, RODRIGUEZ -- read once and referred to  the
  Committee  on  Labor  --  committee  discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

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  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, and
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: (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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08920-04-3

A. 5696--A                          2
              

  (i)  the  United States Congress, any state legislature, or any [popu-
larly-elected] ELECTED local governmental body, or any member or employ-
ee thereof;
  (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 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  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.] "AGENT" MEANS ANY INDIVID-
UAL, 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  [person-
nel] 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 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 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,

A. 5696--A                          3

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
[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  insti-
tute  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 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, 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.]

A. 5696--A                          4

  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  posi-
tion, 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 remuner-
ation; [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 RETALIATO-
RY 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
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.
  S  2. Subdivision 4 of section 741 of the labor law, as added by chap-
ter 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.
  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,
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  substan-
tial  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  govern-

A. 5696--A                          5

mental  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], OR WHICH COULD REASON-
ABLY 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.
  (b)  THE  PROTECTION  AGAINST  RETALIATORY ACTION PROVIDED IN SUBPARA-
GRAPHS (I) AND (II) OF 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 INFOR-
MATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
  (C) Prior to disclosing information pursuant to  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 author-
ity  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 govern-
mental body under paragraph (a) of this subdivision.    NOTIFICATION  TO
THE  APPOINTING  AUTHORITY  OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I)
THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION  FIVE  OF
THIS SECTION; (II) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC
HEALTH  OR SAFETY; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING
TO THE APPOINTING AUTHORITY OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF
EVIDENCE OR OTHER CONCEALMENT OF THE IMPROPER  GOVERNMENTAL  ACTION;  OR
(IV)  SUCH  ACTIVITY COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING
THE WELFARE OF A MINOR.
  (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 REGARDING GOVERNMENTAL ACTION PUNISHABLE BY IMPRISON-
MENT  OR  CIVIL OR CRIMINAL PENALTY. "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 ORDI-
NANCE;  OR  (III)  ANY  JUDICIAL  OR  ADMINISTRATIVE DECISION, RULING OR
ORDER.
  S 4. 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:
  3. (a) Where an employee is subject to dismissal or other disciplinary
action  under a final and binding arbitration provision, or other disci-
plinary procedure contained in a collectively negotiated  agreement,  or
under section seventy-five of this title or any other provision of state
or  local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT
UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee  reasonably
believes  THAT  SUCH  dismissal [or], other disciplinary action OR OTHER
ADVERSE ACTION would not have been taken but for the  conduct  protected
under  subdivision  two  of this section, he or she may assert such as a
defense before the designated arbitrator or hearing officer. The  merits
of  such defense shall be considered and determined as part of the arbi-

A. 5696--A                          6

tration award or hearing officer decision of the matter. If there  is  a
finding  that the dismissal or other disciplinary action is based solely
on a violation by the employer of such subdivision,  the  arbitrator  or
hearing officer shall dismiss or recommend dismissal of the disciplinary
proceeding,  as appropriate, and, if appropriate, reinstate the employee
with back pay, and, in the case of an arbitration  procedure,  may  take
other  appropriate action as is permitted in the collectively negotiated
agreement.
  (b) Where an employee is subject to a collectively  negotiated  agree-
ment  which  contains  provisions  preventing  an  employer  from taking
adverse [personnel] actions and which contains a final and binding arbi-
tration provision to resolve alleged violations of  such  provisions  of
the agreement and the employee reasonably believes that such [personnel]
action  would  not  have  been taken but for the conduct protected under
subdivision two of this section, he or she may assert such  as  a  claim
before  the  arbitrator.  The  arbitrator  shall consider such claim and
determine its merits and shall, if a determination  is  made  that  such
adverse  [personnel] ion is based on a violation by the employer of such
subdivision, take such action to remedy the violation as is permitted by
the collectively negotiated agreement.
  (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.