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.
