Recent Amendments to New York's Retaliation Laws Expand Whistleblower Protections and Encourage Employees to Speak Up

By Wayne Outten
Recent Amendments to New York's Retaliation Laws

Recent Amendments to New York's Retaliation Laws Expand Whistleblower Protections and Encourage Employees to Speak Up

On October 28, 2021, New York Governor Kathy Hochul signed legislation that enhances antiretaliation protections for private-sector employees who report employers' illegal or dangerous business activities. The new provisions offer them—as well as former employees and independent contractors—the same standards and remedies available to current public employees.

Prior New York Antiretaliation Provisions

The previous version of Section 740 of the New York Consolidated Laws prohibited an employer from taking any retaliatory action against an employee who disclosed or threatened to disclose an illegal activity, policy, or practice of the employer, or who refused to participate in an employer's illegal activity, policy, or practice. Also, an employer could not retaliate against an employee who provides information to or testifies before a public body investigating the employer's violation of the law.

However, according to a 1996 New York Court of Appeals decision, the prior law imposed different standards for public and non-public whistleblowers. A private employee alleging retaliatory action by an employer had to prove the reported wrongdoing of the employer was an actual violation of the law. By comparison, a public employee only needs demonstrate that they reasonably believed the disclosure was true and reasonably believed the activity, policy, or practice violated the law.

Revising Key Definitions and Provisions

The amended statute extends the "reasonable belief" standard to current and former workers and independent contractors, regardless of their public or private employment status. No longer does it matter if a worker acts within the scope of their job duties at the time they report a violation, nor must employers always be notified of the disclosure after it is reported.

Additionally, "retaliatory action" now includes adverse action or threats to a worker's current or future employment. The new law also expressly prohibits an employer from threatening to contact immigration authorities regarding an employee's citizenship or work authorization status. "Law, rule or regulation" now encompasses judicial and administrative decisions and executive orders.

Procedurally, the statute of limitations for a claim of workplace retaliation is two years. Parties have the right to a jury trial, and courts may order relief of front pay, a civil

penalty, and punitive damages.

Perhaps the most significant change affects the scope of the disclosed activity, policy, or practice. Before, the employer's wrongdoing had to constitute a "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…."

The bill's authors explained the justification for these new definitions and changes:

Current law provides that an employee is only protected if they disclose to a supervisor or public body an unlawful activity, policy, or practice of the employer that creates and presents a substantial danger to the public health or safety, or that which constitutes health care fraud. Thus, an employee reporting any myriad of illegal activities that do not directly affect public health or safety, from sexual harassment to tax evasion, may be at risk for being retaliated against by their employer with no protection in law.

As Governor Hochul commented, "If we've learned anything from the pandemic, it's that protecting workers must be part of our overall economic recovery efforts. This legislation ensures that employees can speak out on dangerous or illegal business practices that endanger their health and wellbeing.

Thinking About Blowing the Whistle or Facing Retaliation From Your Employer?

If you suspect illegal activity in your workplace and are considering reporting it to authorities, consult an experienced whistleblower retaliation attorney first. And if your employer is retaliating against you for disclosing wrongdoing in your workplace, you need an experienced lawyer on your side. Contact Outten & Golden today – we're here to help.