Tag: whistleblower

February 22, 2022

New York Employers Must Post Whistleblower Notice

New whistleblower protections for New York employees took effect on January 26, 2022. The statutory amendments included a requirement that employers post notices informing their employees of the legal protections. The New York Department of Labor issued a model whistleblower notice for this purpose on February 14, 2022. Employers should now have this notice posted “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

New York Whistleblower Protections

For a full discussion on the recent changes to New York’s workplace whistleblower laws, read our previous article.

What’s in the Whistleblower Notice?

The Department of Labor didn’t get very creative in preparing the model whistleblower notice. It’s essentially just a word-for-word recitation of the whistleblower statute. It doesn’t even have a clever name. It’s just the “Notice of Employee Rights, Protections, and Obligations Under Labor Law Section 740.”

Next Steps

If you haven’t already, post the whistleblower notice in your workplaces along with other employee rights notices. You can download the notice from the DOL here.

But, you may not want to stop at just posting the notice. Note that the new whistleblower protections are a significant expansion of previous employee rights. They substantially increase the scope of potential claims, as employers are prohibited from engaging in a limitless scope of “retaliatory action” against employees who engage in any covered activities. Consider appropriate training of supervisors to reduce the risk of conduct that could produce whistleblower complaints.

December 8, 2021

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.

To stay informed of our latest updates for New York employers, follow Horton Law on LinkedIn.

February 15, 2020

New York Employment Legislation Watch – Early 2020

In 2019, the New York State Legislature made substantial changes to workplace laws. It seems likely that this trend will continue. Let’s take a first look at some proposed employment legislation still pending for possible adoption in 2020.

Note that at the time of writing, none of the bills addressed here have become law. We will continue to track this and other New York employment legislation for updates.

Proposed Bills

These bills have been introduced in the 2020 Legislative Session. Some have been introduced in the past, but did not become law. That is not a clear indication of whether the bill or similar initiative won’t be successful this year. 2019 brought about many changes in New York employment law that would not have become law in prior sessions.

S04883 – “Paid Sick Leave Act”

This bill would require all employers in New York State to provide paid sick leave for their employees.

Sick leave would accrue at the rate of one hour of leave for every 20 hours worked up to a maximum of 80 hours. For small businesses with less than 10 employees, however, the maximum accrual would be limited to 40 hours.

The bill provides that employee must be able to use the paid sick leave:

when the employee is ill or injured;
for the purpose of the employee’s receiving medical care, treatment, or diagnosis; and
to aid or care for certain family members when they are ill or injured, receiving medical care, treatment, or diagnosis.

Covered family members include children, parents, legal guardians/wards; siblings; grandparents; grandchildren; and spouses or another “designated person” if the employee has no spouse.

Employers could choose to provide more paid sick leave than the law would require.

In many ways, this bill is unfathomably broad. But it would not be shocking if New York enacted a more restrained paid sick leave law this year.

A07466 / S02261 – Abusive Work Environment

This bill is an attempt at anti-bullying legislation. It provides that “no employee shall be subjected to an abusive work environment.” Employers would be liable when they or their employees create such conditions in the workplace.

With a broad definition of “abusive work environment,” this bill aims to create protections on top of workplace harassment laws. Essentially, this law would eliminate the requirement that the negative treatment be based on a legally protected personal characteristic. The following could qualify as abusive conduct regardless of the underlying basis:

repeated verbal abuse, such as the use of derogatory remarks, insults, and epithets;
verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature; or
sabotage or undermining of an employee’s work performance.

While none of these behaviors is pleasant or generally desirable, imposing employer liability on these bases would open floodgates of employment litigation. Still, it wouldn’t be a shocking development for New York in 2020.

The Sponsor’s Memo says, “This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.”

On the other hand, it would also provide legal incentives for employers to avoid operating in New York.

A02448 / S01132 – “Schedules That Work Act”

New York City already has a local “Fair Workweek Act” that regulates the scheduling of fast food and retail employees. New York State started down the path of imposing similarly-intended regulations over the past two years. But that effort stalled out of fear that it would have exceeded the Department of Labor’s regulatory authority. However, the State indicated at the time that it might continue the effort through legislation.

The proposed “Schedules That Work Act” would apply to employers with at least 50 employees in New York State. As currently drafted, it would only apply to the retail, food service, and cleaning industries.

This legislation would impose new restrictions on covered employers’ ability to schedule employees. It includes specific parameters regarding call-in pay, split shifts, and advance notice of work schedules.

The Sponsor’s Memo claims:

“This bill would promote more communication between employee and employer regarding expectations for work and require the employer to give more reasonable notice to the employee of changes in their work schedule. A more predictable schedule would result in a more focused employee who has been ensured their responsibilities outside of work have been taken care of. Additionally, giving hourly employees a voice at work would likely decrease worker turnover rates. In this way, this bill would benefit both the employee and the employer.”

Other similar bills are pending, such as A00315 / S03346.

A04714 / S05044 – Personnel Files

Currently, New York law does not require employers to provide employees access to review their personnel files. This bill would change that.

As proposed, this legislation would require employers to:

Give current employees and former, upon request, a free copy of their personnel file each year; and
Allow former employees (or their attorneys or union representatives) to review and copy the employee’s personnel file.

Several other states already have similar statutory provisions.

The Sponsor’s Memo filed with the bill asserts that:

“In the event of an unscrupulous employer or supervisor taking advantage of their position of power this legislation is very useful in giving the employee the opportunity to defend their name and their work ethic if need be.”

A03863 – Expanded Whistleblower Protection

New York’s Labor Law already provides whistleblower protections for employees who report violations of statutes and government regulations by their employers. This bill would amend the existing law to include reporting of “improper business activities.”

Under the bill, “improper business activities” would include violations of any “internal rule promulgated by the employer pursuant to any statute or ordinance” and “any judicial or administrative decision, ruling or order.”

The amended whistleblower protection would also more broadly apply when the employee “in good faith reasonably believes that an improper business activity has occurred or will occur, based on information that the employee in good faith reasonably believes to be true.”

This amendment would no longer require employees to bring the misconduct in question to the attention of their employer before reporting it to an outside source.

Notably, the bill would also create a new requirement that employers post a notice of these protections in the workplace. It also increases penalties for violations by employers and eliminates employers’ opportunity to recover attorneys fees for claims made without a reasonable basis.

The Sponsor’s Memo contends that:

“Currently, the whistle blower protections afforded under these statutes is [sic] overly narrow in scope, merely protecting employees who are reporting employer misconduct that threatens the general public health and safety. The corporate scandals that rocked the business community in the early part of this decade demonstrate the vital need for broad whistle blower protections. The narrow scope of these statutes deprives them of any true meaning or effect. As a result, this much needed legislation finally offers adequate protection to those brave employees who refuse to sacrifice their own integrity in the face of employer intimidation.”

A similar bill is pending as S03683.

Employer Concerns with Proposed New York Employment Legislation

As already suggested in some places above, New York employers have valid reasons to resist much of this legislation. It is unlikely that all of these bills will become law in their current form. However, any of these topics could produce new legal obligations as soon as 2020.

You should consider whether any of these measures would unduly burden your business. If so, it’s not too soon to start tracking this New York employment legislation and seeking to prevent or modify it.

Whether through one of these bills or other measures, employers should expect New York to continue to impose new employee protections this year. It is critical to be aware of any new laws and prepare for compliance as soon as possible.

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