New York’s newly expanded whistleblower protections will take effect on January 26, 2022, posing significant potential liability for employers.
New York’s current whistleblower law, codified at Sections 740 and 741 of the Labor Law, provides only limited whistleblower protection, shielding private-sector employees from retaliation for complaints about practices that pose a “substantial and specific danger to the public health or safety.” Employees are protected from retaliation for complaints about discrimination and harassment under the New York State Human Rights Law and the New York City Human Rights Law, and for complaints about illegal wage and hour issues under New York State Labor Law Section 215, but until now New York has strictly limited the ability to seek redress for adverse action taken by employers against employees who complain about other alleged unlawful conduct. That is beginning to change.
The upcoming amendment to the New York Labor Law will broaden the anti-retaliation provisions to include safeguards for employees, former employees, and independent contractors who disclose or threaten to disclose to a supervisor or public body:
Any conduct that an individual “reasonably believes” to be in violation of any law, rule or regulation, executive order, or any judicial or administrative decision, ruling, or order involving any level or branch of government, regardless of whether the reported violation relates to a matter within the employee’s purview,
Any activity, policy, or practice that the employee “reasonably believes” poses a “significant and specific risk” to public health or safety.
The amendments to the law also create an exception to the previous requirement that the employee (or former employee) bring the alleged offending conduct or practice to the attention of the employer and provide the employer with a reasonable opportunity to cure. Employees are only required to make a “good faith effort to notify his or her employer” in the future.
In some cases, the notification requirement is waived entirely, and the employee may disclose the alleged offending behavior directly to a public body. This exception applies when the following conditions exist:
- a serious and imminent threat to public health or safety;
- risk endangering a minor’s welfare;
- reasonable belief that reporting to the supervisor would result in evidence destruction or concealment
- reasonable fear that internal reporting will cause physical harm to the employee or others; or
- reasonable belief that the offending activity, policy, or practice is already known to the supervisor and will not be corrected
The amended law also broadens the types of conduct that can be considered actionable retaliation. Prior to the amendments, retaliatory action was defined as “the discharge, suspension, or demotion of an employee, or any other adverse employment action taken against an employee in the terms and conditions of employment.” Adverse action now includes actions that would “adversely impact a former employee’s current or future employment,” such as contacting immigration authorities or reporting employees’ or their family members’ immigration status.
Other notable changes in the amended law include the extension of the statute of limitations from one to two years and the expansion of the employee’s available remedies. Employees now have a private civil right of action for alleged violations of the whistleblower law, with prevailing plaintiffs entitled to a range of remedies including injunctive relief, reinstatement, front and back pay, legal costs, and attorneys’ fees. There are also civil penalties of up to $10,000 available. Notably, if a court finds that the employee’s retaliation claim was filed “without basis in law or fact,” the employee may face legal fees and costs from the employer.
Finally, the amendment requires employers to prominently display notice of whistleblower protections.
Employers should take proactive steps to analyze and revise policies, postings, and training materials in light of the upcoming changes to the law. Given the likelihood of an increase in the number of complaints, employers should consider conducting training for supervisory and human resources personnel on how to handle and investigate complaints in order to best mitigate the risks of civil action.