S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4394--A
     Cal. No. 1112
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 4, 2021
                                ___________
 
 Introduced  by Sens. RAMOS, BIAGGI, GOUNARDES, JACKSON, KAMINSKY, LIU --
   read twice and ordered printed, and when printed to  be  committed  to
   the  Committee  on  Labor  --  reported favorably from said committee,
   ordered to first and second report, amended on second report,  ordered
   to  a  third  reading,  and  to be reprinted as amended, retaining its
   place in the order of third reading
 
 AN ACT to amend the labor law, in relation  to  retaliatory  actions  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
 remuneration, INCLUDING FORMER EMPLOYEES, OR NATURAL PERSONS EMPLOYED AS
 INDEPENDENT CONTRACTORS TO CARRY OUT WORK IN FURTHERANCE OF  AN  EMPLOY-
 ER'S BUSINESS ENTERPRISE WHO ARE NOT THEMSELVES EMPLOYERS.
   (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 EXECUTIVE ORDER; (II) any rule or
 regulation  promulgated  pursuant  to [any federal, state or local] SUCH
 statute or ordinance OR EXECUTIVE ORDER; OR (III) ANY JUDICIAL OR ADMIN-
 ISTRATIVE DECISION, RULING OR ORDER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00031-03-1

 S. 4394--A                          2
 
   (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;
   (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 an employee, or other  adverse  employment  action  taken
 against  an  employee  in  the  terms  and  conditions of employment] AN
 ADVERSE ACTION TAKEN BY AN EMPLOYER OR HIS OR HER  AGENT  TO  DISCHARGE,
 THREATEN,  PENALIZE,  OR  IN  ANY  OTHER MANNER DISCRIMINATE AGAINST ANY
 EMPLOYEE OR FORMER EMPLOYEE EXERCISING HIS  OR  HER  RIGHTS  UNDER  THIS
 SECTION,  INCLUDING  (I)  ADVERSE  EMPLOYMENT ACTIONS OR THREATS TO TAKE
 SUCH ADVERSE EMPLOYMENT ACTIONS AGAINST AN  EMPLOYEE  IN  THE  TERMS  OF
 CONDITIONS OF EMPLOYMENT INCLUDING BUT NOT LIMITED TO DISCHARGE, SUSPEN-
 SION,  OR  DEMOTION;  (II)  ACTIONS OR THREATS TO TAKE SUCH ACTIONS THAT
 WOULD ADVERSELY IMPACT A FORMER EMPLOYEE'S CURRENT OR FUTURE EMPLOYMENT;
 OR (III) THREATENING TO CONTACT OR CONTACTING UNITED STATES  IMMIGRATION
 AUTHORITIES  OR  OTHERWISE REPORTING OR THREATENING TO REPORT AN EMPLOY-
 EE'S SUSPECTED CITIZENSHIP OR IMMIGRATION STATUS OR THE SUSPECTED  CITI-
 ZENSHIP  OR  IMMIGRATION  STATUS  OF  AN  EMPLOYEE'S FAMILY OR HOUSEHOLD
 MEMBER, AS DEFINED IN SUBDIVISION TWO OF  SECTION  FOUR  HUNDRED  FIFTY-
 NINE-A OF THE SOCIAL SERVICES LAW, TO A FEDERAL, STATE, OR LOCAL AGENCY.
   (f)  "Supervisor"  means any individual within an employer's organiza-
 tion who has the authority to direct and control the work performance of
 the affected employee; or who has managerial authority to  take  correc-
 tive  action  regarding  the violation of the law, rule or regulation of
 which the employee complains.
   [(g) "Health care fraud" means health care fraud as defined by article
 one hundred seventy-seven of the penal law.]
   2. Prohibitions. An employer shall not take any  retaliatory  [person-
 nel]  action against an employee, WHETHER OR NOT WITHIN THE SCOPE OF THE
 EMPLOYEE'S JOB DUTIES, because such employee does any of the following:
   (a) discloses, or threatens to disclose to a supervisor or to a public
 body an activity, policy or practice of the employer that  THE  EMPLOYEE
 REASONABLY  BELIEVES  is  in violation of law, rule or regulation [which
 violation creates and presents] OR THAT THE EMPLOYEE REASONABLY BELIEVES
 POSES 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]  ACTIVITY, POLICY OR PRACTICE by such
 employer; or
   (c) objects to, or refuses to participate in any such activity, policy
 or practice [in violation of a law, rule or regulation].
   3. Application. The protection against retaliatory [personnel]  action
 provided  by paragraph (a) of subdivision two of this section pertaining

 S. 4394--A                          3
 
 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 activ-
 ity, policy or practice [in violation of law, rule or regulation] to the
 attention of a supervisor of the employer and has afforded such employer
 a  reasonable  opportunity to correct such activity, policy or practice.
 SUCH EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THERE IS  AN
 IMMINENT  AND  SERIOUS  DANGER  TO  THE PUBLIC HEALTH OR SAFETY; (B) THE
 EMPLOYEE REASONABLY BELIEVES THAT  REPORTING  TO  THE  SUPERVISOR  WOULD
 RESULT  IN  A DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE ACTIV-
 ITY, POLICY OR PRACTICE; (C) SUCH ACTIVITY,  POLICY  OR  PRACTICE  COULD
 REASONABLY  BE  EXPECTED  TO LEAD TO ENDANGERING THE WELFARE OF A MINOR;
 (D) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING  TO  THE  SUPERVISOR
 WOULD  RESULT  IN  PHYSICAL HARM TO THE EMPLOYEE OR ANY OTHER PERSON; OR
 (E) THE EMPLOYEE REASONABLY BELIEVES  THAT  THE  SUPERVISOR  IS  ALREADY
 AWARE  OF  THE  ACTIVITY,  POLICY  OR PRACTICE AND WILL NOT CORRECT SUCH
 ACTIVITY, POLICY OR PRACTICE.
   4. Violation; remedy. (a) An employee who has been the  subject  of  a
 retaliatory  [personnel]  action in violation of this section may 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]  RETALIATORY  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 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;
   (b) the reinstatement of the employee to the same position held before
 the retaliatory [personnel] action, or to  an  equivalent  position,  OR
 FRONT PAY IN LIEU THEREOF;
   (c) the reinstatement of full fringe benefits and seniority rights;
   (d)  the compensation for lost wages, benefits and other remuneration;
 [and]
   (e) the payment by the employer of  reasonable  costs,  disbursements,
 and attorney's fees;

 S. 4394--A                          4
 
   (F)  A  CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS;
 AND/OR
   (G)  THE PAYMENT BY THE EMPLOYER OF PUNITIVE DAMAGES, IF THE VIOLATION
 WAS WILLFUL, MALICIOUS OR WANTON.
   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.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that  effective  immediately,  the
 addition,  amendment  and/or  repeal of any rule or regulation necessary
 for the implementation of this act on its effective date are  authorized
 to  be  made by the commissioner of labor of the state of New York on or
 before such effective date.