NY State Senate Bill 2019-S3683A

Senate Bill S3683A

2019-2020 Legislative Session

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal or dangerous business activities

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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
Jul 14, 2020	print number 3683a
Jul 14, 2020	amend and recommit to labor
Jan 08, 2020	referred to labor
Feb 12, 2019	referred to labor

Bill Amendments

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A (Active)

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2019-S3683 - Details

See Assembly Version of this Bill:: A7384
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§740 & 741, Lab L; amd §75-b, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A5696
2015-2016: S7858, A5754
2017-2018: S1887, A5757
2021-2022: S725, A5144
2023-2024: S5403

2019-S3683 - Summary

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal or dangerous business activities.

2019-S3683 - Sponsor Memo

                                
 
BILL NUMBER: S3683

SPONSOR: HOYLMAN
 
TITLE OF BILL:  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

 
PURPOSE OR GENERAL IDEA OF BILL:

The bill provides greater protections for "whistleblower" employees who
disclose information about illegal activities of their employers.  This
bill expands whistleblower protections to include public employees &
former employees.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition of
"law, rule or regulation," to clearly include state, local and federal
laws, rules or regulations and state, local and federal judicial and
administrative decisions. It clarifies the definition of "public body"
to include any department of the executive branch and any division,

board or bureau of any public body. Expands the term "retaliatory
action" to include the penalization or discrimination against an employ-
ee or former employee who "blew the whistle".

This section also specifies that an employee will be protected against
retaliatory action for disclosure of employer activity that the employee
in good faith reasonably believes has occurred or will occur and in good
faith reasonably believes constitutes illegal business activity.

Adds a "good faith" requirement relating to the effort of the employee
to bring an illegal activity to the attention of the employer in order
to be protected, and creates certain exceptions when such prior to
notice to employer is not necessary. It also extends the statute of
limitations from one year to two years for bringing a civil action for
retaliatory action by an employer. Further, it requires employers to
inform their employees of their rights under this section.

Adds a right to a jury trial.

Adds remedies for whistleblowers who suffer impermissible retaliatory
actions, and restricts situations when employer is entitled, in court's
discretion, to attorney's fees when successful.

Section 2: Amends Labor Law section 741, which allows a health care
employee to seek enforcement of section 741 pursuant to Labor Law
section 740 to conform to the above amendments to Labor Law section 740.

Section 3: Amends Civil Service Law 75-b (2) by: A) Adding protections,
to create parity for whistleblower protections for public employees as
for private employees under Labor Law 740; and B) Limiting prior notifi-
cation to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include :174nAcKx the
definition of retaliatory action, the elimination of a job'ti!.14-Ithat
uniquely singles out such employee.



Section 5: Adds a new Civil Service Law 75-b (5) to require all public
employers to inform their employees of their whistle blower rights under
this Section of law.

 
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:

Labor Law § 740 prohibits private employers from firing or taking any
other adverse employment action against an employee who refuses to
participate in an illegal business activity, or who discloses such ille-
gal activity to a public body, if the illegal activity presents a
"substantial and specific danger to the public health or safety."  This
protection does not apply, however, unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the behavior. Civil Service Law 75-b
prohibits public employers from firing or taking any other adverse
employment action against a public employee who discloses information:

(1) regarding a violation of a law, rule or regulation presenting a
substantial and specific danger to the public health and safety; or

(2) regarding any action by a Public employer which the employee reason-
ably believes constitutes a violation of any federal, state or local
law, rule or regulation. Prior to disclosing the information, the
employee must make a good faith effort to inform his or her employer and
to give the employer a reasonable time to take appropriate action,
unless there is an imminent and serious danger to the public health or
safety.

 
JUSTIFICATION:

In 1984, private and public employees in New York State who report ille-
gal or improper activities by their employers are given certain
Protections under New York's whistleblower protection law.  Unfortunate-
ly, there are several weaknesses in the current whistleblower law. These
weaknesses greatly limit the protections provided to employees. Further,
it deters honest employees from revealing illegal activities of their
employers, out of the legitimate fear that they will be dismissed or
otherwise retaliated against for reporting such violations.

First, Labor Law § 740 only protects employees who disclose illegal
activities that present a "substantial and specific danger to the public
health or safety." Thus, if an employee becomes aware that his or her
employer is knowingly defrauding its customers, or stealing from govern-
ment authorities, for example, the whistleblower law will provide no
protection to the employee. This bill's amendment maintains the current
protections for employees who blow the whistle on public health or safe-
ty violations or health care fraud, but expands that protection to
employees who blow the whistle on any "illegal business activity."

Second, a private employee who in good faith reasonably believes that
his or her employer has engaged in actions which the employee in good
faith reasonably believes constitute a violation of law can be termi-
nated for revealing that information to government authorities or the
employer, if it turns out that no violation can be proved in court. The
Civil Service Law was amended in 1986 to protect public employees who
reasonably believe that a violation has occurred, but private employees
still do not have that protection.

New York's whistleblower statutes are also not especially effective
because they generally do not apply unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the illegal behavior.  Unfortunately,
many employees do not know of this requirement, and are never told by
their employers that they can be fired if they do not first tell the
employer of the illegal activity. The employer notification requirement
set forth in Labor Law § 740 means that private employees, unlike public
employees under Civil Service Law § 75-b, can be fired for reporting
violations, unreported to the employer, even where such present an immi-
nent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business activ-
ities, Civil Service Law § 75-b does not contain a similar provision.
This means that public employees can be fired for refusing to violate
the law. Finally, the remedies available to employees under Labor Law §
740 are clearly inadequate, and the right to a jury trial is not
provided for.

This bill addresses these numerous defects in the current Whistleblower
statutes. It implements certain recommendations made by New York State
Law Revision Commission following a five year study of the law, and
enacts, for all employees, protections similar to those extended by
Labor Law § 741 to healthcare workers during the 2002 legislative
session.

New York State should encourage, not discourage, employees who wish to
report violations of law by their employers. Although the "Whistleblower
Law" enacted in 1984 was a good first step, experience over the past 25
years has shown that the law is simply inadequate.  By making the neces-
sary reforms to strengthen the law, this bill will act as a deterrent to
employer's who might otherwise engage in illegal activity, will protect
the public from such wrongdoing, and will ensure that the honest and
law-abiding employees who have the courage to reveal illegal activities
are protected against retaliation by their employers.

 
PRIOR LEGISLATIVE HISTORY:

2015: A.5754 (Benedetto) Advanced to third reading ca 1.492
2014: A.5696-A (Benedetto) passed the Assembly/A.3682-A (Klein) Died in
Senate
2013: A.5696-A (Benedetto) Passed the Assembly, Died in Senate

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

This bill is fiscally neutral.

 
EFFECTIVE DATE:
This act shall take effect 90 days after it shall have become a law.

2019-S3683 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3683
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 12, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- 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  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:
   §  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;
   (ii) any federal, state, or local [judiciary] COURT, or any member  or
 employee thereof, or any grand or petit jury;

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

                                                            LBD01535-02-9

 S. 3683                             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 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,
 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

 S. 3683                             3
 
 [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.]
   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;

 S. 3683                             4

   (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.
   §  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.
   §  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-
 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

 S. 3683                             5

 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) "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.
   § 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-
 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.

 S. 3683                             6
 
   (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.
   § 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.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

co-Sponsors

View additional co-sponsors

2019-S3683A (ACTIVE) - Details

See Assembly Version of this Bill:: A7384
Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§740 & 741, Lab L; amd §75-b, Civ Serv L
Versions Introduced in Other Legislative Sessions:: 2013-2014: A5696
2015-2016: S7858, A5754
2017-2018: S1887, A5757
2021-2022: S725, A5144
2023-2024: S5403

2019-S3683A (ACTIVE) - Summary

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal or dangerous business activities.

2019-S3683A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3683A

SPONSOR: HOYLMAN
 
TITLE OF BILL:

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

 
PURPOSE OR GENERAL IDEA OF BILL:

The bill provides greater protections for "whistleblower" employees who
disclose information about illegal activities of their employers.  This
bill expands whistleblower protections to include public employees &
former employees.

 
SUMMARY OF PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition of
"law, rule or regulation," to clearly include state, local and federal
laws, rules or regulations and state, local and federal judicial and

administrative decisions. It clarifies the definition of "public body"
to include any department of the executive branch and any division,
board or bureau of any public body. Expands the term "retaliatory
action" to include the penalization or discrimination against an employ-
ee or former employee who "blew the whistle".

This section also specifies that an employee will be protected against
retaliatory action for disclosure of employer activity that the employee
in good faith reasonably believes has occurred or will occur and in good
faith reasonably believes constitutes illegal business activity.

Adds a "good faith" requirement relating to the effort of the employee
to bring an illegal activity to the attention of the employer in order
to be protected, and creates certain exceptions when such prior to
notice to employer is not necessary. It also extends the statute of
limitations from one year to two years for bringing a civil action for
retaliatory action by an employer. Further, it requires employers to
inform their employees of their rights under this section.

Adds a right to a jury trial.

Adds remedies for whistleblowers who suffer impermissible retaliatory
actions, and restricts situations when employer is entitled, in court's
discretion, to attorney's fees when successful.

Section 2: Amends Labor. Law section 741, which allows a health care
employee to seek enforcement of section 741 pursuant to Labor Law
section 740 to conform to the above amendments to Labor Law section 740.

Section 3: Amends Civil Service Law 75-b (2) by: A) Adding protections,
to create parity for whistleblower protections for public employees as '
for private employees under Labor Law 740; and B) Limiting prior notifi-
cation to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include under the defi-
nition of retaliatory action, the elimination of a job title that
uniquely singles out such employee.

Section 5: Adds a new Civil Service Law 75-b (5) to require all public
employers to inform their employees of their whistle blower rights under
this Section of law.

 
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:

Labor Law § 740 prohibits private employers from. firing or taking any
other adverse employment action against an employee who refuses to
participate in an illegal business activity, or who discloses such ille-
gal activity to a public body, if the illegal activity presents a
"substantial and specific danger to the public health or safety."  This
protection does not apply, however, unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the behavior. Civil Service Law §
75-b prohibits public employers from firing or taking any other adverse
employment action against a public employee who discloses information:

(1) regarding a violation of a law, rule or regulation presenting a
substantial and specific danger to the public health and safety; or

(2) regarding any action by a Public employer which the employee reason-
ably believes constitutes a violation of any federal, state or local
law, rule or regulation. Prior to disclosing the information, the
employee must make a good faith effort to inform his or her employer and
to give the employer a reasonable time to take appropriate action,
unless there is an imminent and serious danger to the public health or
safety.

 
JUSTIFICATION:

In 1984, private and public employees in New York State who report ille-
gal or improper activities by their employers are given certain
Protections under New York's whistleblower protection law.  Unfortunate-
ly, there are several weaknesses in the current whistleblower law. These
weaknesses greatly limit the protections provided to employees. Further,
it deters honest employees from revealing illegal activities of their
employers, out of the legitimate fear that they will be dismissed or
otherwise retaliated against for reporting such violations.

First, Labor Law § 740 only protects employees who disclose illegal
activities that present a "substantial and specific danger to the public
health or safety." Thus, if an employee becomes aware that his or her
employer is knowingly defrauding its customers, or stealing from govern-
ment authorities, for example, the whistleblower law will provide no
protection to the employee. This bill's amendment maintains the current
protections for employees who blow the whistle on public health or safe-
ty violations or health care fraud, but expands that protection to
employees who blow the whistle on any "illegal business activity."

Second, a private employee who in good faith reasonably believes that
his or her employer has engaged in actions which the employee in good
faith reasonably believes constitute a violation of law can be termi-
nated for revealing that information to government authorities or the
employer, if it turns out that no violation can be proved in court. The.
Civil Service Law was amended in 1986 to protect public employees who
reasonably believe that a violation has occurred, but private employees
still do not have that protection.

New York's whistleblower statutes are also not especially effective
because they generally do not apply unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the illegal behavior.  Unfortunately,
many employees do not know of this requirement, and are never told by
their employers that they can be fired if they do not first tell the
employer of the illegal activity. The employer notification requirement
set forth in Labor Law § 740 means that private employees, unlike public
employees under Civil Service Law § 75-b, can be fired for reporting
violations, unreported to the employer, even where such present an immi-
nent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business activ-
ities, Civil Service Law § 75-b does not contain a similar provision.
This means that public employees can be fired for refusing to violate
the law. Finally, the remedies available to employees under Labor Law §
740 are clearly inadequate, and the right to a jury trial is not
provided for.

This bill addresses these numerous defects in the current Whistieblower.
statutes. It implements certain recommendations made by New York State
Law Revision Commission following a five year study of the law, and
enacts, for all employees, protections similar to those extended by
Labor Law § 741 to healthcare workers during the 2002 legislative
session.

New York State should encourage, not discourage, employees who wish to
report violations of law by their employers. Although the "Whistieblower
Law" enacted in 1984 was a good first step, experience over the past 25
years has shown that the law is simply inadequate.  By making the neces-
sary reforms to strengthen the law, this bill will act as a deterrent to
employer's who might otherwise engage in illegal activity, will protect
the public from such wrongdoing, and will ensure that the honest and
law-abiding employees who have the courage to reveal illegal activities
are protected against retaliation by their employers.

 
PRIOR LEGISLATIVE HISTORY:

2019: 5.3683 (Hoylman) - Died in Labor Committee

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

This bill is fiscally neutral.

 
EFFECTIVE DATE:
This act shall take effect 90 days after it shall have become a law.

2019-S3683A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3683--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 12, 2019
                                ___________
 
 Introduced  by Sens. HOYLMAN, BIAGGI, GOUNARDES, KRUEGER, MAYER, SALAZAR
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Labor -- recommitted to the  Committee  on  Labor  in
   accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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,
 paragraph  (d)  of  subdivision  4 as added by chapter 24 of the laws of
 2002, and subdivision 7 as amended by chapter 684 of the laws  of  2019,
 is amended to read as follows:
   §  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.

                                                            LBD01535-06-0

 S. 3683--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  [in  the  terms  and conditions of employment] OR
 FORMER EMPLOYEE.
   (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  OR  DANGEROUS  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  OR  DANGEROUS  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: (I) IS IN
 VIOLATION OF ANY LAW, RULE OR REGULATION; OR (II) CREATES AND PRESENTS A
 SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC HEALTH OR SAFETY.
   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 OR DANGEROUS BUSINESS ACTIVITY,
 INFORMATION ABOUT an ILLEGAL OR DANGEROUS 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 OR DANGEROUS
 BUSINESS ACTIVITY; or
   (c) objects to, or refuses to participate in, any  [such]  ILLEGAL  OR
 DANGEROUS  BUSINESS activity[, policy or practice in violation of a law,
 rule or regulation].
   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

 S. 3683--A                          3
 
 BELIEVES  THAT AN ILLEGAL OR DANGEROUS BUSINESS ACTIVITY HAS OCCURRED OR
 WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASON-
 ABLY 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 OR DANGEROUS BUSINESS activity[, policy or practice
 in  violation of law, rule or regulation] to the attention of a supervi-
 sor [of the employer] and has afforded such employer a reasonable oppor-
 tunity to correct such activity[, policy  or  practice].  SUCH  EMPLOYER
 NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THE EMPLOYER HAS NOT POST-
 ED  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
 OR  DANGEROUS  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
 OR DANGEROUS 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,

 S. 3683--A                          4

 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, WITH MONETARY AMOUNTS AS
 DETERMINED BY THE JURY OTHER THAN UNDER PARAGRAPH (E)  AND/OR  PARAGRAPH
 (G) OF THIS SUBDIVISION:
   (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]
   (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, UNLESS  THE  COURT  FINDS
 THAT THE EMPLOYER ACTED IN GOOD 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.
   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.
   §  2. Subdivision 4 of section 741 of the labor law, as added by chap-
 ter 24 of the laws of 2002, is amended and a new subdivision 6 is  added
 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.
   6.  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.
   § 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

 S. 3683--A                          5
 
 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-
 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
 GOVERNMENTAL  BODY  UNDER PARAGRAPH (A) OF THIS SUBDIVISION.   NOTIFICA-
 TION TO THE  APPOINTING  AUTHORITY  OR DESIGNEE SHALL  NOT  BE  REQUIRED
 WHERE:   (I) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVI-
 SION  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 GOVERN-
 MENTAL  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: (I) IN VIOLATION OF ANY
 LAW,  RULE  OR REGULATION REGARDING GOVERNMENTAL ACTION; OR (II) CREATES
 AND PRESENTS A SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC  HEALTH  OR
 SAFETY.  "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED FEDER-
 AL, 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.
   § 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

 S. 3683--A                          6
 
 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-
 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.
   §  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.
   § 6. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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Senate Bill S3683A

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Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

Bill Amendments

co-Sponsors

2019-S3683 - Details

2019-S3683 - Summary

2019-S3683 - Sponsor Memo

2019-S3683 - Bill Text download pdf

co-Sponsors

2019-S3683A (ACTIVE) - Details

2019-S3683A (ACTIVE) - Summary

2019-S3683A (ACTIVE) - Sponsor Memo

2019-S3683A (ACTIVE) - Bill Text download pdf

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