Bill Text: NY A05144 | 2021-2022 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal or dangerous business activities.

Spectrum: Partisan Bill (Democrat 13-0)

Status: (Introduced - Dead) 2021-06-07 - substituted by s4394a [A05144 Detail]

Download: New_York-2021-A05144-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5144

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 11, 2021
                                       ___________

        Introduced  by M. of A. BENEDETTO, ABINANTI, AUBRY, JACKSON -- read once
          and referred to the Committee on Labor

        AN ACT to amend the labor law and the civil service law, in relation  to
          protection  of  employees  and  former  employees  against retaliatory
          action by employers

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section  740 of the labor law, as added by chapter 660 of
     2  the laws of 1984, paragraph (g) of subdivision 1 as added and  paragraph
     3  (a)  of  subdivision  2  as  amended by chapter 442 of the laws of 2006,
     4  paragraph (d) of subdivision 4 as added by chapter 24  of  the  laws  of
     5  2002,  and  subdivision 7 as amended by chapter 684 of the laws of 2019,
     6  is amended to read as follows:
     7    § 740. Retaliatory [personnel] action by  employers;  prohibition.  1.
     8  Definitions.  For  purposes  of this section, unless the context specif-
     9  ically indicates otherwise:
    10    (a) "Employee" means an individual who performs services for and under
    11  the control and direction of an employer for wages  or  other  remunera-
    12  tion.
    13    (b)  "Employer"  means  any  person,  firm,  partnership, institution,
    14  corporation, or association that employs one or more employees.
    15    (c) "Law, rule or regulation" includes: (i) any duly enacted  federal,
    16  state  or  local  statute or ordinance [or]; (ii) any rule or regulation
    17  promulgated pursuant to [any federal, state or local]  such  statute  or
    18  ordinance;  or  (iii) any judicial or administrative decision, ruling or
    19  order.
    20    (d) "Public body" includes the following:
    21    (i) the United States Congress, any state legislature, or  any  [popu-
    22  larly-elected] elected local governmental body, or any member or employ-
    23  ee thereof;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02665-01-1
        A. 5144                             2

     1    (ii)  any federal, state, or local [judiciary] court, or any member or
     2  employee thereof, or any grand or petit jury;
     3    (iii)  any  federal,  state,  or  local regulatory, administrative, or
     4  public agency or authority, or instrumentality thereof; [or]
     5    (iv) any federal, state, or local law enforcement agency, prosecutori-
     6  al office, or police or peace officer;
     7    (v) any federal, state or local department of an executive  branch  of
     8  government; or
     9    (vi)  any division, board, bureau, office, committee, or commission of
    10  any of the public bodies described in subparagraphs (i) through  (v)  of
    11  this paragraph.
    12    (e)  "Retaliatory  [personnel] action" means the discharge, suspension
    13  [or demotion of], demotion, penalization or  discrimination  against  an
    14  employee  or former employee, or other adverse [employment] action taken
    15  against an employee [in the  terms  and  conditions  of  employment]  or
    16  former employee.
    17    (f)  "Supervisor"  means any individual within an employer's organiza-
    18  tion who has the authority to direct and control the work performance of
    19  [the affected] an employee; or who has [managerial]  authority  to  take
    20  corrective  action  regarding  the  [violation of the law, rule or regu-
    21  lation] illegal or dangerous business activity  of  which  the  employee
    22  complains.
    23    (g) ["Health care fraud" means health care fraud as defined by article
    24  one  hundred seventy-seven of the penal law.] "Agent" means any individ-
    25  ual, partnership, association, corporation or group of persons acting on
    26  behalf of an employer.
    27    (h) "Illegal or  dangerous  business  activity"  means  any  practice,
    28  procedure,  action  or  failure to act by an employer, or an employee or
    29  agent of such employer, taken in the course of the employer's  business,
    30  whether or not within the scope of employment or agency, that: (i) is in
    31  violation of any law, rule or regulation; or (ii) creates and presents a
    32  substantial and specific danger to the public health or safety.
    33    2.  Prohibitions.  An employer shall not take any retaliatory [person-
    34  nel] action against an employee or former employee because such employee
    35  or former employee does any of  the  following  while  employed  by  the
    36  employer, whether or not within the scope of the employee's job duties:
    37    (a)  discloses  to  a  supervisor  or  a  public body, or threatens to
    38  [disclose] make a disclosure to a  [supervisor  or  to  a]  public  body
    39  unless the employer remedies the illegal or dangerous business activity,
    40  information  about an illegal or dangerous business activity[, policy or
    41  practice of the employer that is in violation of law, rule or regulation
    42  which violation creates and presents a substantial and  specific  danger
    43  to the public health or safety, or which constitutes health care fraud];
    44    (b)  provides  information  to,  or  testifies before, any public body
    45  conducting an investigation, hearing or inquiry into any such [violation
    46  of a law, rule or regulation by  such  employer]  illegal  or  dangerous
    47  business activity; or
    48    (c)  objects  to,  or refuses to participate in, any [such] illegal or
    49  dangerous business activity[, policy or practice in violation of a  law,
    50  rule or regulation].
    51    3.  Application. The protection against retaliatory [personnel] action
    52  provided by paragraphs (a), (b) and  (c)  of  subdivision  two  of  this
    53  section  shall  apply  to  any  employee  who  in  good faith reasonably
    54  believes that an illegal or dangerous business activity has occurred  or
    55  will occur, based on information that the employee in good faith reason-
    56  ably  believes  to be true; provided however that the protection against
        A. 5144                             3

     1  retaliatory action provided by paragraph (a) of subdivision two of  this
     2  section  pertaining to disclosure to a public body shall not apply to an
     3  employee who makes such disclosure to a public body unless the  employee
     4  has  [brought] made a good faith effort to notify his or her employer by
     5  bringing the illegal or dangerous business activity[, policy or practice
     6  in violation of law, rule or regulation] to the attention of a  supervi-
     7  sor [of the employer] and has afforded such employer a reasonable oppor-
     8  tunity  to  correct  such  activity[, policy or practice]. Such employer
     9  notification shall not be required where: (a) the employer has not post-
    10  ed any notice required by subdivision eight of this section;  (b)  there
    11  is  an  imminent  and serious danger to the public health or safety; (c)
    12  the employee reasonably believes that reporting to the supervisor  would
    13  result  in a destruction of evidence or other concealment of the illegal
    14  or dangerous business activity; (d) such activity  could  reasonably  be
    15  expected to lead to endangering the welfare of a minor; (e) the employee
    16  reasonably  believes  that  reporting  to the supervisor would result in
    17  physical harm to the employee or any other person; or (f)  the  employee
    18  reasonably  believes that the supervisor is already aware of the illegal
    19  or dangerous business activity and will not correct such activity.
    20    4. Violation; remedy. (a) An employee who has been the  subject  of  a
    21  retaliatory  [personnel]  action in violation of this section may insti-
    22  tute a civil action in a court of competent jurisdiction for  relief  as
    23  set  forth  in  subdivision  five  of this section within [one year] two
    24  years after the alleged retaliatory [personnel] action was taken.
    25    (b) Any action authorized by this section may be brought in the county
    26  in which the alleged retaliatory [personnel]  action  occurred,  in  the
    27  county  in  which the complainant resides, or in the county in which the
    28  employer has its principal place of business.  In any such  action,  the
    29  parties shall be entitled to a jury trial.
    30    (c)  [It  shall  be  a  defense to any action brought pursuant to this
    31  section that the personnel action was predicated upon grounds other than
    32  the employee's exercise of any rights protected by this section.] Except
    33  as otherwise provided in this section, a violation of  this  section  is
    34  established  when  the complainant demonstrates that a motivating factor
    35  for the retaliatory action violates subdivision  two  of  this  section.
    36  Remedies  for  violation  of  subdivision  two  of this section shall be
    37  limited solely to those provided in  paragraphs  (e),  (f)  and  (g)  of
    38  subdivision  five  of  this section if the employer demonstrates that it
    39  would have taken the same action in the  absence  of  the  impermissible
    40  motivating  factor. It shall [also] be a defense that the individual was
    41  an independent contractor.
    42    [(d) Notwithstanding the provisions of paragraphs (a) and (c) of  this
    43  subdivision, a health care employee who has been the subject of a retal-
    44  iatory  action  by  a health care employer in violation of section seven
    45  hundred forty-one of this article may institute  a  civil  action  in  a
    46  court  of  competent jurisdiction for relief as set forth in subdivision
    47  five of this section within two  years  after  the  alleged  retaliatory
    48  personnel  action was taken. In addition to the relief set forth in that
    49  subdivision, the court, in its discretion, based upon a finding that the
    50  employer acted in bad faith in the retaliatory action,  may  assess  the
    51  employer  a  civil  penalty  of  an  amount  not  to exceed ten thousand
    52  dollars, to be paid to the  improving  quality  of  patient  care  fund,
    53  established  pursuant  to section ninety-seven-aaaa of the state finance
    54  law.]
    55    5. Relief. In any action brought pursuant to subdivision four of  this
    56  section, the court may order relief as follows, with monetary amounts as
        A. 5144                             4

     1  determined  by  the jury other than under paragraph (e) and/or paragraph
     2  (g) of this subdivision:
     3    (a) [an injunction to restrain continued violation of this section;
     4    (b)]  the  reinstatement  of  the  employee  to the same position held
     5  before the retaliatory [personnel] action[,] or to an  equivalent  posi-
     6  tion, or front pay in lieu thereof;
     7    [(c)]  (b)  the  reinstatement  of  full fringe benefits and seniority
     8  rights;
     9    [(d)] (c) the compensation for lost wages, benefits and other remuner-
    10  ation; [and]
    11    (d) compensatory damages for economic loss and for emotional distress;
    12    (e) the payment by the employer of  reasonable  costs,  disbursements,
    13  and attorney's fees;
    14    (f)  an  injunction  to restrain the employer's continued violation of
    15  this section; and
    16    (g) a civil penalty of an amount not to exceed  ten  thousand  dollars
    17  and/or  a  liquidated damages award equal to amounts of damages pursuant
    18  to paragraphs (c) and (d) of this subdivision, unless  the  court  finds
    19  that the employer acted in good faith in the retaliatory action.
    20    6.  Employer  relief.  A court, in its discretion, may also order that
    21  reasonable attorneys' fees and court costs and disbursements be  awarded
    22  to  an  employer  if  the  court determines that an action brought by an
    23  employee under this section was without basis in law or in fact.
    24    7. Existing rights. Nothing in this section shall be deemed to  dimin-
    25  ish  the rights, privileges, or remedies of any employee under any other
    26  law or regulation  or  under  any  collective  bargaining  agreement  or
    27  employment contract.
    28    8.  Publication.  Every  employer  shall  inform  employees  of  their
    29  protections, rights and obligations under this  section,  by  posting  a
    30  notice  thereof.    Such notices shall be posted conspicuously in easily
    31  accessible and well-lighted places customarily frequented  by  employees
    32  and applicants for employment.
    33    §  2. Subdivision 4 of section 741 of the labor law, as added by chap-
    34  ter 24 of the laws of 2002, is amended and a new subdivision 6 is  added
    35  to read as follows:
    36    4.  Enforcement.  A  health care employee may seek enforcement of this
    37  section pursuant to [paragraph (d) of subdivision] subdivisions four and
    38  five of section seven hundred forty of this article.
    39    6.  Publication.  Every  employer  shall  inform  employees  of  their
    40  protections,  rights  and  obligations  under  this section by posting a
    41  notice thereof. Such notices shall be  posted  conspicuously  in  easily
    42  accessible  and  well-lighted places customarily frequented by employees
    43  and applicants for employment.
    44    § 3. Subdivision 2 of section 75-b of the civil service law, as  added
    45  by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
    46  ter 899 of the laws of 1986, is amended to read as follows:
    47    2. (a) A public employer shall not dismiss, suspend, demote, penalize,
    48  threaten  or  discriminate  against, or take other disciplinary or other
    49  [adverse personnel action] act of reprisal  against  a  public  employee
    50  regarding  the employee's employment because the employee: (i) discloses
    51  to a public body or threatens to make a disclosure to a public  body  or
    52  supervisor  if  the  employer does not remedy the improper conduct, to a
    53  governmental body information[: (i)] regarding a  violation  of  a  law,
    54  rule  or regulation which violation creates [and] or presents a substan-
    55  tial and specific danger to the public health or safety[; or (ii)  which
    56  the employee reasonably believes to be true and reasonably believes], or
        A. 5144                             5

     1  which  constitutes  an  improper governmental action[. "Improper govern-
     2  mental action" shall mean any action by a public employer  or  employee,
     3  or  an  agent  of  such employer or employee, which is undertaken in the
     4  performance  of such agent's official duties, whether or not such action
     5  is within the scope of his employment, and which is in violation of  any
     6  federal, state or local law, rule or regulation], or which could reason-
     7  ably  be  expected  to  lead to endangering the welfare of a minor; (ii)
     8  provides information to, or testifies before, any public body conducting
     9  an investigation, hearing or inquiry  into  any  violation  or  improper
    10  governmental  action; or (iii) objects to, or refuses to participate in,
    11  any such violation or improper governmental action.
    12    (b) The protection against retaliatory  action  provided  in  subpara-
    13  graphs  (i) and (ii) of paragraph (a) of this subdivision shall apply to
    14  any employee who in good faith reasonably believes that a  violation  or
    15  improper governmental action has occurred or will occur, based on infor-
    16  mation that the employee in good faith reasonably believes to be true.
    17    (c) Prior to disclosing information pursuant to  subparagraph  (i)  of
    18  paragraph  (a)  of  this subdivision, an employee shall have made a good
    19  faith effort to provide the appointing authority or his or her  designee
    20  the information to be disclosed and shall provide the appointing author-
    21  ity  or  designee  a  reasonable  time to take appropriate action unless
    22  there  is  imminent  and serious danger to public health or safety.  For
    23  the purposes of this subdivision, an employee  who   acts   pursuant  to
    24  this  paragraph   shall   be  deemed  to have disclosed information to a
    25  governmental body under paragraph (a) of this subdivision.     Notifica-
    26  tion  to the   appointing   authority  or designee shall not be required
    27  where:  (i) the employer has not posted any notice required by  subdivi-
    28  sion  five of this section; (ii) there is an imminent and serious danger
    29  to  the public health  or safety; (iii) the employee reasonably believes
    30  that reporting to the appointing authority or designee would result in a
    31  destruction of evidence or other concealment  of  the  improper  govern-
    32  mental  action;  or (iv)  such  activity could reasonably be expected to
    33  lead to endangering the welfare of a minor.
    34    (d) "Improper governmental action" shall mean any practice, procedure,
    35  action  or  failure to act by a public employer or employee, or an agent
    36  of such employer or employee, which is undertaken in the performance  of
    37  such  agent's  official duties, whether or not such action is within the
    38  scope of such person's employment, and which is: (i) in violation of any
    39  law, rule or regulation regarding governmental action; or  (ii)  creates
    40  and  presents  a substantial and specific danger to the public health or
    41  safety. "Law, rule or regulation" includes: (i) any duly enacted  feder-
    42  al,  state  or  local  statute or ordinance; (ii) any rule or regulation
    43  promulgated pursuant to any such statute  or  ordinance;  or  (iii)  any
    44  judicial or administrative decision, ruling or order.
    45    §  4. Subdivision 3 of section 75-b of the civil service law, as added
    46  by chapter 660 of the laws of 1984, is amended to read as follows:
    47    3. (a) Where an employee is subject to dismissal or other disciplinary
    48  action under a final and binding arbitration provision, or other  disci-
    49  plinary  procedure  contained in a collectively negotiated agreement, or
    50  under section seventy-five of this title or any other provision of state
    51  or local law, or to the elimination of job title or classification  that
    52  uniquely  fits and singles out such employee and the employee reasonably
    53  believes that such dismissal [or], other disciplinary  action  or  other
    54  adverse  action  would not have been taken but for the conduct protected
    55  under subdivision two of this section, he or she may assert  such  as  a
    56  defense  before the designated arbitrator or hearing officer. The merits
        A. 5144                             6

     1  of such defense shall be considered and determined as part of the  arbi-
     2  tration  award  or hearing officer decision of the matter. If there is a
     3  finding that the dismissal or other disciplinary action is based  solely
     4  on  a  violation  by the employer of such subdivision, the arbitrator or
     5  hearing officer shall dismiss or recommend dismissal of the disciplinary
     6  proceeding, as appropriate, and, if appropriate, reinstate the  employee
     7  with  back  pay,  and, in the case of an arbitration procedure, may take
     8  other appropriate action as is permitted in the collectively  negotiated
     9  agreement.
    10    (b)  Where  an employee is subject to a collectively negotiated agree-
    11  ment which  contains  provisions  preventing  an  employer  from  taking
    12  adverse [personnel] actions and which contains a final and binding arbi-
    13  tration  provision  to  resolve alleged violations of such provisions of
    14  the agreement and the employee reasonably believes that such [personnel]
    15  action would not have been taken but for  the  conduct  protected  under
    16  subdivision  two  of  this section, he or she may assert such as a claim
    17  before the arbitrator. The arbitrator  shall  consider  such  claim  and
    18  determine  its  merits  and  shall, if a determination is made that such
    19  adverse [personnel] ion is based on a violation by the employer of  such
    20  subdivision, take such action to remedy the violation as is permitted by
    21  the collectively negotiated agreement.
    22    (c)  [Where]  In addition to or in lieu of the procedures set forth in
    23  paragraphs (a) and (b) of this subdivision, or where an employee is  not
    24  subject to any of the provisions of [paragraph (a) or (b) of this subdi-
    25  vision]  such paragraphs, the employee may commence an action in a court
    26  of competent jurisdiction under the same terms and  conditions  and  for
    27  the same relief as set forth in article twenty-C of the labor law.
    28    §  5. Section 75-b of the civil service law is amended by adding a new
    29  subdivision 5 to read as follows:
    30    5. Every public employer shall inform employees of their  protections,
    31  rights  and obligations under this section, by posting a notice thereof.
    32  Such notices shall be posted  conspicuously  in  easily  accessible  and
    33  well-lighted  places  customarily frequented by employees and applicants
    34  for employment.
    35    § 6. This act shall take effect on the ninetieth day  after  it  shall
    36  have become a law.