Tag: retaliation

New York Whistleblower Protections

New York Strengthens Worker Whistleblower Protections

Beginning January 26, 2022, amendments to the New York Labor Law will expand workers’ rights to assert claims of wrongdoing without reprisal. Among the significant changes, New York Labor Law Section 740, which only applies to private entities (not governmental employers), will now provide protections to independent contractors and former employees in addition to current employees. It also expands the covered whistleblower activities and provides new protections beyond adverse employment actions. This law will now broadly prohibit private businesses from retaliating in any manner against covered workers.

Pre-Existing Protections

Before these amendments, Labor Law Section 740 only protected “employees” who had disclosed to a supervisor or public body an unlawful activity, policy, or practice of their employer that creates and presents a substantial danger to the public health or safety” or “health care fraud.”

In addition, courts have applied the law to require proof of an actual violation of law by the employer to afford whistleblower protections.

Read this earlier article for more on New York whistleblower protections generally and before these amendments to Labor Law Section 740,

Areas of Expansion

With the amendments, NY Labor Law Section 740 will cover more workers in more circumstances. There are also additional penalties available in cases of proven retaliation.

Worker Coverage

For purposes of this whistleblower law, the definition of “employee” is defined to include people who are, in fact, not employees. Covered workers will now include “former employees, or natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers.”

Protected Activity

Under the amended whistleblower law, covered workers may not be retaliated against for:

  • Disclosing or threatening to disclose to a supervisor or public body an activity, policy, or practice of the employer that the employee reasonably believes is in violation of law, rule, or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.
  • Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such activity, policy, or practice by such employer.
  • Objecting to, or refusing to participate in, any such activity, policy, or practice.

With these expanded protections, workers are now entitled to be free from retaliatory action based on virtually any activity they take based on any employer activity, policy, or practice that the employee reasonably believes is against any law. Neither relation to health or safety nor actual violation is required.

Notice to Employer

Before the amendments, an employee had to bring the objected to activity to their employer’s attention before disclosing it to a public body. As amended, the law only requires employees to make a “good faith effort” to notify the employer in advance. Moreover, no such notice (or effort to provide notice) is required where:

  • There is an imminent and serious danger to the public health or safety;
  • The employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy, or practice;
  • Such activity, policy, or practice could reasonably be expected to lead to endangering the welfare of a minor;
  • The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or
  • 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.

Retaliatory Action

Previously, employers could not take the following action against employees protected by the whistleblower law: “discharge, suspension or demotion . . . or other adverse employment action taken against an employee in the terms and conditions of employment.”

Now, employers are prohibited from engaging in a limitless scope of “retaliatory action,” defined broadly to include any manner of discrimination. Without limitation, the statute specifically includes the following examples:

  • Adverse employment action or threats to take such adverse employment actions against an employee in the terms [or] conditions of employment including but not limited to discharge, suspension, or demotion.
  • Actions or threats to take such actions that would adversely impact a former employee’s current or future employment.
  • Threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.

Penalties

Labor Law Section 740 permits employees to sue their employers for whistleblower retaliation. As amended, the law will now offer additional remedies for employees to recover and penalties for employers to pay.

Existing remedies included the availability of injunctive relief, orders of reinstatement to employment, compensation for lost pay and benefits, and payment of the employees’ attorneys’ fees and costs. The amendments provide for a new civil penalty of up to $10,000 and the payment of punitive damages for “willful, malicious or wanton” violations.

The amendments also expand the statute of limitations for whistleblower actions under this law from one to two years.

Notice by Employer

The amendments also impose a new affirmative obligation on all employers to inform their employees of the protections and rights afforded by Labor Law Section 740. Employers must do this by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

Recognize that this may create a posting requirement for individuals and/or entities who do not qualify as an “employer” for any other purpose. Anyone (other than a governmental entity or agent thereof acting in that capacity) who uses the services of an independent contractor (who is not him/herself an employer) for a business purpose would seemingly qualify as an employer under this law and be obligated to make such posting.

While it’s likely the New York State Department of Labor will publish a model notice for this purpose, it does not appear to have done so at the time of publication of this article.

What “Employers” Should Do?

Other than satisfying the new notice posting requirement, there may be relatively little that employers must affirmatively do. But that doesn’t mean you should ignore these very significant amendments.

Most fundamentally, the amendments primarily require that employers follow the law–that is, all laws. Any legal violation could entitle a worker to protection from retaliation. And given the broad definition of what now constitutes retaliation, it is realistic to expect a substantial expansion of claims alleging whistleblower retaliation.

Otherwise, the expanded retaliation prohibitions do make some previously permissible business activities unlawful. Consequently, employers should carefully consider all actions that may negatively impact any employee who has engaged in any potentially protected whistleblower conduct. Consulting with an experienced employment attorney is advised.

 

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New York HERO Act

New York HERO Act Goes Far Beyond COVID

On May 5, 2021, New York Governor Andrew Cuomo signed new State laws regulating workplace safety, known as (though not formally entitled) the Health and Essential Rights (HERO) Act. The HERO Act requires employers to implement safety plans and permits employees to form workplace safety committees. The Act only applies to private (i.e., non-government) businesses and organizations.

In approving this legislation, Governor Cuomo issued a memorandum indicating that “technical” amendments will be forthcoming. This wrinkle complicates forecasting when the new requirements will ultimately take effect.

Airborne Infectious Disease Exposure Prevention

A new section 218-b of the New York Labor Law will impose new requirements regarding “prevention of occupational exposure to an airborne infectious disease.”

Airborne Infectious Disease

This term is defined to mean “any infectious viral, bacterial or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated a highly contagious communicable disease by the commissioner of health that presents a serious risk of harm to the public health.”

Covered Employees

The HERO Act is unusually expansive in its definition of “employee”. The term broadly includes “any person providing labor or services for remuneration for a private entity or business within the state.” Beyond workers with a direct employment relationship, it expressly includes:

  • independent contractors;
  • individuals working for staffing agencies, contractors, or subcontractors on behalf of the employer at any individual work site; and
  • any individual delivering goods or transporting people at, to, or from the worksite on behalf of the employer.

Worksites

Likewise, the term “worksite” is relatively broad in scope. It is defined as “any physical space, including a vehicle, that has been designated as the location where work is performed”. This definition includes employer-provided housing and transportation, but does not include an employee’s residence (unless provided by the employer).

Supervisors

The HERO Act defines supervisors as “any person who has the authority to direct and control the work performance of other employees, or who has the managerial authority to take corrective action regarding the violation of the law, rules or regulations.” Any employee who is a member of a bargaining unit that primarily represents non-supervisory employees does not qualify as a supervisor under the Act.

Forthcoming Standards

The law requires the New York Department of Labor to publish industry-specific model airborne infectious disease exposure prevention standards. These will establish minimum requirements that employers must meet.

In addition to whatever else the DOL, in consultation with the NYS Department of Health, mandates, the standards must address:

  • Employee health screenings.
  • Face coverings.
  • Personal protective equipment (PPE) for eyes, face, head, and extremities.
  • Protective clothing.
  • Respiratory devices.
  • Protective shields and barriers.
  • Accessible workplace hand hygiene stations.
  • Regular cleaning and disinfecting of shared equipment and frequently touched surfaces and all surfaces and washable items in other high-risk areas.
  • Social distancing for employees, consumers, and customers.
  • Compliance isolation and quarantine orders.
  • Engineering controls, such as airflow and exhaust ventilation.
  • Designation of a supervisory employee to enforce compliance. (“Non-supervisory line employees shall not bear responsibility for overseeing compliance with the requirements of the model policy.”)
  • Compliance with applicable laws or guidance on notification of potential exposure to airborne infections disease at the worksite.
  • Verbal review of the infectious disease standard, employer policies, and employee rights under the HERO Act with employees.
  • Anti-retaliation protections.

Once the model airborne infectious disease exposure plans are available from the State, employers must either adopt the applicable model plan or establish an alternative plan that meets or exceeds the minimum standards included in the model standards.

In unionized companies, the employer may only adopt an alternative to the model plan if the union agrees. Moreover, even where there is no union representing employees, the employer can only implement an alternative plan “with meaningful participation of employees.”

Once adopted, employers must provide their plans in writing to all employees. The plan must also be posted “in a visible and prominent location within the worksite.” If the employer has an employee handbook, it must also include the plan there.

Retaliation Prohibitions

The HERO Act prohibits employers and their agents from taking adverse action against an employee for:

  • Exercising their rights under the law or applicable infectious disease exposure prevention plan.
  • Reporting violations of the law or plan.
  • Reporting an airborne infectious disease exposure concern.
  • Refusing to work based on a good faith belief of an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with laws or other government orders, despite notice to the employer of the inconstant working conditions that the employer failed to address.

Penalties for Violations

The DOH may assess a civil fine upon any entity or person who violates the HERO Act. The penalty is at least $50 per day for not adopting an airborne infectious disease exposure plan and between $1,000 and $10,000 for failure to abide by an adopted plan. These penalties rise to at least $200 per day and $1,000-$20,000, respectively, for repeat violations.

In addition, any employee may sue an employer for any violation of an airborne infectious disease exposure plan that allegedly “creates a substantial probability that death or serious physical harm could result”. Employees may receive “all appropriate relief,” including reimbursement of attorneys’ fees and liquidated damages of up to $20,000.

In his approval memorandum, Governor Cuomo cautioned that amendments to the enforcement procedures are necessary. He wants to “limit lengthy court litigation to those private rights of action, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.”

Workplace Safety Committees

In addition to the airborne infectious disease plan requirements, a new section 27-d of the NY Labor Law permits employees to organize workplace safety committees that employers (with at least 10 employees) must recognize and deal with to address any safety and health issues. These issues are by no means limited to airborne infectious disease prevention.

Note that the workplace safety committee provisions are in a separate statutory section from the airborne infectious disease exposure plan requirements. As a result, some terms are defined differently between the two components. For example, independent contractors do not appear to be “employees” who qualify to be committee members.

Committee Structure

The law requires that these workplace safety committees must include both employer and employee representatives. At least two-thirds of the members must be non-supervisory employees. One “employee” representative and one “employer” representative must co-chair the committee.

More than one committee may exist to represent “geographically distinct work-sites.”

Committee Activities

Workplace safety committees may do all of the following:

  • Raise health and safety concerns, hazards, complaints, and violations to which the employer must respond.
  • Review any policy put in place in the workplace required by the NY Labor Law or the Workers’ Compensation Law and provide feedback to such policy.
  • Review the adoption of any policy in the workplace in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive.
  • Participate in any site visit by any governmental entity responsible for enforcing safety and health standards.
  • Review any report filed by the employer related to the health and safety of the workplace.
  • Regularly schedule a meeting during work hours at least once a quarter.

In addition to paid quarterly meetings, employers must allow “safety committee designees” to attend a training on “the function of workers safety committees, rights established under [§ 27-d], and an introduction to occupational safety and health,” “without a loss of pay.”

Employers may not retaliate against employees for their participation in the activities of a workplace safety commission.

Collective Bargaining Waiver

Companies with unionized employees may negotiate out of the workplace safety committee requirements in their collective bargaining agreements. However, any such waiver must specifically reference NY Labor Law § 27-d.

When Must Companies Act?

No aspect of the HERO Act took effect immediately.

The airborne infectious disease exposure plan requirements could take effect in as little as 30 days, which would be June 4, 2021. However, employers won’t have to adopt these plans until the Department of Labor sets the minimum standards and issues the industry-specific models.

The workplace safety commission provisions are not scheduled to take effect for six months, on November 1, 2021.

Either of these effective dates could change based on the statutory amendments Governor Cuomo requested.

For now, New York businesses are already subject to COVID-19 safety requirements along the lines of what the HERO Act will require to be addressed in permanent airborne infectious disease safety plans. This new law primarily mandates that employers remain prepared to avoid and/or deal with future pandemics.

The more dramatic impact of the HERO Act will likely be the creation of workplace safety committees. This development essentially imposes an ongoing “union-like” bargaining obligation for New York companies with at least 10 employees. Among the unanswered question is whether even a single employee’s request is sufficient to mandate the creation of a safety committee.

The Department of Labor will be busy coming up with standards and regulations regarding many aspects of these new laws. Employers must remain alert to future developments to prepare for implementation and ensure ongoing compliance.

 

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Immigration Retaliation

Immigration Retaliation Prohibited in New York

A recent amendment to New York’s Labor Law prohibits employers from retaliating against employees by threatening to or reporting them to immigration authorities. The new immigration retaliation prohibition relates to any efforts by an employee to exercise rights under the state’s extensive Labor Law protections. The amendment will take effect beginning October 25, 2019.

Who Will Be Protected?

The retaliation protections take effect once an employee has done any of the following:

  • Made a complaint that the employer has violated the NY Labor Law;
  • Is believed by their employer to have made such a complaint;
  • Pursued a NY Labor Law proceeding;
  • Testified or prepared to testify in a NY Labor Law investigation or proceeding; or
  • Been the subject of an adverse finding against their employer.

Employees do not have to reference the Labor Law or any of its specific provisions to qualify for protection from retaliation. But they must make reasonable, good faith allegations.

Existing Retaliation Prohibition

Before the amendment, Section 215 of the NY Labor Law protected employees from retaliation in the above situations. The protections are vague, but widespread. They prohibit employers from doing any of the following to an employee based on protected activity:

  • Discharging;
  • Threatening;
  • Penalizing; or
  • “In any other manner” discriminating or retaliating against a protected employee.

New Immigration Retaliation Protection

The immigration retaliation amendment adds unique specific clarification of the general prohibitions above.

The amendment provides that retaliation includes “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

These actions arguably already violated the existing anti-retaliation provisions of the NY Labor Law. But this amendment provides clear guidance to employers not to pursue this path in response to protected activity.

What Does This Mean for New York Employers?

From a retaliation law perspective, this amendment is not groundbreaking. Threatening to report an employee to immigration authorities to deter complaints about labor law violations was already a risky proposition. But that might not have been obvious to everyone. So this should be a clear lesson of how not to try to avoid liability for not paying minimum wages, overtime, or otherwise following the state labor laws.

However, this legislation does not mean that employers can never report employees to immigration authorities. You just can’t do it in response to protected activity. Employers already have an obligation through the federal I-9 form to ensure that their employees have the right to work in the U.S. Reporting individuals that falsify that status, for example, may be permissible. But you should consult with an employment and/or immigration lawyer before doing so.

 

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