New York Whistleblower Protections

“…any person holding a position by appointment or employment in the service of a public employer except judges or justices of the unified court system and members of the legislature.”

N.Y. Civil Service Law § 75-b(1)(b) (McKinney 2015).

A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information:

• regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or
• which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.

“Improper governmental 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.

N.Y. Civil Service Law § 75-b(2)(a) (McKinney 2015).

Prior to disclosing information pursuant to 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 authority 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.

N.Y. Civil Service Law § 75-b(2)(b) (McKinney 2015).

Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary 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 arbitration 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.

N.Y. Civil Service Law § 75-b(3)(a) (McKinney 2015).

Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration 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 action 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.

N.Y. Civil Service Law § 75-b(3)(b) (McKinney 2015).

Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.

N.Y. Civil Service Law § 75-b(3)(c) (McKinney 2015).

N.Y. State Finance Law § 191 (McKinney 2015).

“Any current or former employee, contractor, or agent of any private or public employer who is discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of employment, or otherwise harmed or penalized by an employer, or a prospective employer, because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action brought under this article or other efforts to stop one or more violations of this article…”

N.Y. State Finance Law § 191(1) (McKinney 2015).

“…a “lawful act” shall include, but not be limited to, obtaining or transmitting to the state, a local government, a qui tam plaintiff, or private counsel solely employed to investigate, potentially file, or file a cause of action under this article, documents, data, correspondence, electronic mail, or any other information, even though such act may violate a contract, employment term, or duty owed to the employer or contractor, so long as the possession and transmission of such documents are for the sole purpose of furthering efforts to stop one or more violations of this article. Nothing in this subdivision shall be interpreted to prevent any law enforcement authority from bringing a civil or criminal action against any person for violating any provision of law.”

N.Y. State Finance Law § 191(2) (McKinney 2015).

“[Persons protected under this act] shall be entitled to all relief necessary to make the employee, contractor or agent whole. Such relief shall include but not be limited to:

• an injunction to restrain continued discrimination;
• hiring, contracting or reinstatement to the position such person would have had but for the discrimination or to an equivalent position;
• reinstatement of full fringe benefits and seniority rights;
• payment of two times back pay, plus interest; and
• compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”

N.Y. State Finance Law § 191(1) (McKinney 2015).

N.Y. Labor Law § 740 (McKinney 2015).

“ “Employee” means an individual who performs services for and under the control and direction of an employer for wages or other remuneration.”

N.Y. Labor Law § 740(1)(a) (McKinney 2015).

“Prohibitions. An employer shall not take any retaliatory personnel action against an employee 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 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; or

(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.”

N.Y. Labor Law § 740(2) (McKinney 2015).

“Violation; remedy.

• An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken.
• 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.
• 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. It shall also be a defense that the individual was an independent contractor.
• Notwithstanding the provisions of paragraphs (a) and (c) of this subdivision, a health care employee who has been the subject of a retaliatory action by a health care employer in violation ofsection 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.”

N.Y. Labor Law § 740(4) (McKinney 2015).

“Relief. In any action brought pursuant to subdivision four of this section, the court may order relief as follows:

• an injunction to restrain continued violation of this section;
• the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position;
• the reinstatement of full fringe benefits and seniority rights;
• the compensation for lost wages, benefits and other remuneration; and
• the payment by the employer of reasonable costs, disbursements, and attorney’s fees.

N.Y. Labor Law § 740(5) (McKinney 2015).

N.Y. Exec. Law § 296(1)(e) (McKinney 2015).

Any individual who opposes an employer’s, licensing agency’s, employment agency’s, or labor organization’s discrimination against an individual based on that person’s: age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status.

N.Y. Exec. Law § 296(1)(a)-(d) (McKinney 2015).

Protected activities include: opposing practices forbidden by the New York Human Rights Act, filing a complaint under the Act, or testifying or assisting in any proceeding under the Act.

N.Y. Exec. Law § 296(1)(e) (McKinney 2015).

Administrative

• Order requiring employer to cease and desist from discriminatory practice;
• Order requiring affirmative action by employer to reinstate, hire, accommodate, or otherwise remedy the discriminatory action or inaction taken against the aggrieved party;
• Compensatory damages to the aggrieved person;
• Forfeiture to the state of employer’s profits obtained as the result of discriminatory acts; and
• Civil fines and penalties against employers found to have committed unlawful acts in a willful, wanton, or malicious manner.

N.Y. Exec. Law § 297(4)(c) (McKinney 2015).

Court

If a complaint has been dismissed by the Commission, an aggrieved individual may bring an action in court and seek the same remedies allowed during an administrative adjudication.

N.Y. Exec. Law § 297(9) (McKinney 2015).

N.Y. Labor Law § 741.

Any individual who provides health care services and is employed by a public or private entity which provides health care services to the public.

N.Y. Labor Law § 741(1)(a).

1. The disclosure or threatened disclosure of a policy or practice of the employer that the employee reasonably believes to be improper patient care;
2. A refusal to participate in a policy or practice that the employee reasonably believes to constitute improper patient care.

N.Y. Labor Law § 741(2).

1. Injunction against continued retaliatory action;
2. Reinstatement with full benefits and privileges;
3. Compensation for lost pay and benefits;
4. Attorney’s fees and costs;
5. And a civil penalty not to exceed 10,000 against to be paid to the state improving quality of patient care fund.

N.Y. Labor Law §§ 740(4)(d) and 740(5).