Bill Text: NY A10271 | 2009-2010 | General Assembly | Introduced
Bill Title: Enacts provisions providing protection to employees from retaliatory actions by employers where such employees report violations of law, rules or regulations, or improper governmental actions.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2010-03-16 - referred to labor [A10271 Detail]
Download: New_York-2009-A10271-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
10271
I N A S S E M B L Y
March 16, 2010
___________
Introduced by M. of A. BENEDETTO -- 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 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, and
4 paragraph (d) of subdivision 4 as added by chapter 24 of the laws of
5 2002, is amended to read as follows:
6 S 740. Retaliatory personnel action by employers; prohibition. 1.
7 Definitions. For purposes of this section, unless the context specif-
8 ically indicates otherwise:
9 (a) "Employee" means an individual who performs services for and under
10 the control and direction of an employer for wages or other remunera-
11 tion.
12 (b) "Employer" means any person, firm, partnership, institution,
13 corporation, or association that employs one or more employees.
14 (c) "Law, rule or regulation" includes: (I) any duly enacted FEDERAL,
15 STATE OR LOCAL statute, LAW or ordinance [or]; (II) any rule or regu-
16 lation promulgated pursuant to [any federal, state or local] SUCH stat-
17 ute, LAW or ordinance; OR (III) THE FINAL DECISION, RULING OR ORDER OF A
18 JUDICIAL OR ADMINISTRATIVE BODY.
19 (d) "Public body" includes the following:
20 (i) the United States Congress, any state legislature, or any [popu-
21 larly-elected] ELECTED local governmental body, or any member or employ-
22 ee thereof;
23 (ii) any federal, state, or local [judiciary] COURT, or any member or
24 employee thereof, or any grand or petit jury;
25 (iii) any federal, state, or local regulatory, administrative, or
26 public agency or authority, or instrumentality thereof; [or]
27 (iv) any federal, state, or local law enforcement agency, prosecutori-
28 al office, or police or peace officer;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10460-08-0
A. 10271 2
1 (V) ANY FEDERAL, STATE OR LOCAL DEPARTMENT OF AN EXECUTIVE BRANCH OF
2 GOVERNMENT; OR
3 (VI) ANY DIVISION, BOARD, BUREAU, OFFICE, COMMITTEE OR COMMISSION OF
4 ANY OF THE PUBLIC BODIES DESCRIBED IN SUBPARAGRAPHS (I) THROUGH (V) OF
5 THIS PARAGRAPH.
6 (e) "Retaliatory personnel action" means the discharge, suspension [or
7 demotion of], DEMOTION OR DISCRIMINATION AGAINST an employee, [or other
8 adverse employment action taken against an employee in the terms and
9 conditions of employment] REGARDING TERMS, CONDITIONS, LOCATION OR PRIV-
10 ILEGES OF EMPLOYMENT.
11 (f) "Supervisor" means any individual within an employer's organiza-
12 tion who has the authority to direct and control the work performance of
13 [the affected] AN employee; or who has [managerial] authority to take
14 corrective action regarding the violation of the law, rule or regulation
15 of which the employee complains.
16 (g) "Health care fraud" means health care fraud as defined by article
17 one hundred seventy-seven of the penal law.
18 (H) "FINANCIAL FRAUD" MEANS AN ACTIVITY WHICH IS A MISDEMEANOR OR
19 FELONY UNDER THE BANKING LAW OR ANY OF THE PROVISIONS OF LAW REFERRED TO
20 IN SECTION SEVENTY-EIGHT OF THE BANKING LAW.
21 (I) "INSURANCE FRAUD" SHALL HAVE THE SAME MEANING AS IS ASCRIBED TO
22 SUCH TERM PURSUANT TO SECTION 176.05 OF THE PENAL LAW.
23 2. Prohibitions. An employer shall not take any retaliatory personnel
24 action against an employee because such employee does any of the follow-
25 ing:
26 (a) discloses, or threatens to disclose to a supervisor or to a public
27 body an activity, policy or practice of the employer that is in
28 violation of A law, rule or regulation [which] THE EMPLOYEE REASONABLY
29 BELIEVES EVINCES AN ABUSE OF AUTHORITY, THE MISMANAGEMENT OR WASTE OF
30 PUBLIC ASSETS OR MONIES, OR IS A THREAT TO THE ENVIRONMENT WHERE SUCH
31 violation creates and presents a substantial and specific danger to the
32 public health [or], safety OR GENERAL WELFARE, or which constitutes
33 health care fraud, INSURANCE FRAUD OR FINANCIAL FRAUD;
34 (b) provides information to, or testifies before, any public body
35 conducting an investigation, hearing or inquiry into any such violation
36 of a law, rule or regulation by such employer; or
37 (c) objects to, or refuses to participate in any such activity, policy
38 or practice in violation of a law, rule or regulation.
39 3. Application. The protection against retaliatory personnel action
40 provided by PARAGRAPHS (A) AND (B) OF SUBDIVISION TWO OF THIS SECTION
41 SHALL APPLY TO ANY EMPLOYEE WHO BELIEVES THAT AN ACTIVITY, POLICY OR
42 PRACTICE IN VIOLATION OF A LAW, RULE OR REGULATION HAS OCCURRED OR WILL
43 OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE REASONABLY BELIEVES TO BE
44 TRUE; PROVIDED HOWEVER THAT THE PROTECTION AGAINST RETALIATORY PERSONNEL
45 ACTION PROVIDED BY paragraph (a) of subdivision two of this section
46 pertaining to disclosure to a public body shall not apply to an employee
47 who makes such disclosure to a public body unless the employee has
48 [brought] MADE A GOOD FAITH EFFORT TO NOTIFY HIS OR HER EMPLOYER BY
49 BRINGING the activity, policy or practice in violation of law, rule or
50 regulation to the attention of a supervisor of the employer and has
51 afforded such employer a reasonable opportunity to correct such activ-
52 ity, policy or practice. EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED
53 WHERE: (A) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVI-
54 SION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER
55 TO THE PUBLIC HEALTH, SAFETY OR GENERAL WELFARE; (C) THE EMPLOYEE
56 REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN A
A. 10271 3
1 DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE ILLEGAL BUSINESS
2 ACTIVITY; OR (D) SUCH VIOLATION COULD REASONABLY BE EXPECTED TO LEAD TO
3 ENDANGERING THE WELFARE OF A MINOR.
4 4. Violation; remedy. (a) An employee who has been the subject of a
5 retaliatory personnel action in violation of this section may institute
6 a civil action in a court of competent jurisdiction for relief as set
7 forth in subdivision five of this section within [one year] TWO YEARS
8 after the alleged retaliatory personnel action was taken.
9 (b) Any action authorized by this section may be brought in the county
10 in which the alleged retaliatory personnel action occurred, in the coun-
11 ty in which the complainant resides, or in the county in which the
12 employer has its principal place of business.
13 (c) It shall be a defense to any action brought pursuant to this
14 section that the personnel action was predicated upon grounds other than
15 the employee's exercise of any rights protected by this section. It
16 shall also be a defense that the individual was an independent contrac-
17 tor.
18 (d) Notwithstanding the provisions of paragraphs (a) and (c) of this
19 subdivision, a health care employee who has been the subject of a retal-
20 iatory action by a health care employer in violation of section seven
21 hundred forty-one of this article may institute a civil action in a
22 court of competent jurisdiction for relief as set forth in subdivision
23 five of this section within two years after the alleged retaliatory
24 personnel action was taken. In addition to the relief set forth in
25 [that] SUCH subdivision, the court, in its discretion, based upon a
26 finding that the employer acted in bad faith in the retaliatory action,
27 may assess the employer a civil penalty of an amount not to exceed ten
28 thousand dollars, to be paid to the improving quality of patient care
29 fund, established pursuant to section ninety-seven-aaaa of the state
30 finance law.
31 5. Relief. In any action brought pursuant to subdivision four of this
32 section, the court may order relief as follows:
33 (a) an injunction to restrain continued violation of this section;
34 (b) the reinstatement of the employee to the same position held before
35 the retaliatory personnel action, or to an equivalent position;
36 (c) the reinstatement of full fringe benefits and seniority rights;
37 (d) the compensation for lost wages, benefits and other remuneration;
38 [and]
39 (e) the payment by the employer of reasonable costs, disbursements,
40 and attorney's fees;
41 (F) AN INJUNCTION TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF
42 THIS SECTION WITH RESPECT TO THE EMPLOYEE; AND
43 (G) A CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS,
44 IF THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD
45 FAITH IN THE RETALIATORY ACTION.
46 6. Employer relief. A court, in its discretion, may also order that
47 reasonable attorneys' fees and court costs and disbursements be awarded
48 to an employer if the court determines that an action brought by an
49 employee under this section was without REASONABLE basis in law or in
50 fact.
51 7. Existing rights. Nothing in this section shall be deemed to dimin-
52 ish the rights, privileges, or remedies of any employee under any other
53 law or regulation or under any collective bargaining agreement or
54 employment contract; except that the institution of an action in accord-
55 ance with this section shall be deemed a waiver of the rights and reme-
A. 10271 4
1 dies available under any other contract, collective bargaining agree-
2 ment, law, rule or regulation or under the common law.
3 8. PUBLICATION. EVERY EMPLOYER SHALL INFORM EMPLOYEES OF THEIR
4 PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A
5 NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY
6 ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
7 AND APPLICANTS FOR EMPLOYMENT. THE DEPARTMENT SHALL PREPARE AND POST ON
8 ITS INTERNET WEBSITE A NOTICE THAT EMPLOYERS MAY USE TO COMPLY WITH THE
9 PROVISIONS OF THIS SUBDIVISION.
10 S 2. Subdivision 2 of section 75-b of the civil service law, as added
11 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
12 ter 899 of the laws of 1986, is amended to read as follows:
13 2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE OR
14 DISCRIMINATE or take other disciplinary or other adverse personnel
15 action against a public employee regarding the employee's employment
16 because the employee discloses TO A GOVERNMENTAL BODY OR THREATENS TO
17 DISCLOSE IF AN ACTIVITY, POLICY OR PRACTICE IN VIOLATION OF A LAW, RULE
18 OR REGULATION IS NOT REMEDIED, to a governmental body information: (i)
19 regarding a violation of a law, rule or regulation which violation
20 creates and presents a substantial and specific danger to the public
21 health [or], safety OR GENERAL WELFARE; or (ii) which the employee
22 reasonably believes to be true and reasonably believes, OR WHICH consti-
23 tutes an improper governmental action; OR (III) WHICH COULD REASONABLY
24 BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; OR (IV) WHICH
25 PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING
26 AN INVESTIGATION, HEARING OR INQUIRY INTO ANY IMPROPER GOVERNMENTAL
27 ACTION; OR (V) WHICH OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY
28 IMPROPER GOVERNMENTAL ACTION. "Improper governmental action" shall mean
29 any action by a public employer or employee, or an agent of such employ-
30 er or employee, which is undertaken in the performance of such agent's
31 official duties, whether or not such action is within the scope of his
32 employment, and which is in violation of any federal, state or local
33 law, rule or regulation.
34 (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN
35 PARAGRAPH (A) OF THIS SUBDIVISION SHALL APPLY TO ANY EMPLOYEE WHO IN
36 GOOD FAITH REASONABLY BELIEVES THAT A VIOLATION OR IMPROPER GOVERNMENTAL
37 ACTION HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOY-
38 EE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
39 (C) Prior to disclosing information pursuant to paragraph (a) of this
40 subdivision, an employee shall have made a good faith effort to provide
41 the appointing authority or his or her designee the information to be
42 disclosed and shall provide the appointing authority or designee a
43 reasonable time to take appropriate action unless there is imminent and
44 serious danger to public health or safety. For the purposes of this
45 subdivision, an employee who acts pursuant to this paragraph shall be
46 deemed to have disclosed information to a governmental body under para-
47 graph (a) of this subdivision. NOTIFICATION TO THE APPOINTING AUTHORITY
48 OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I) THE EMPLOYER HAS NOT POSTED
49 ANY NOTICE REQUIRED BY SUBDIVISION FIVE OF THIS SECTION; (II) THERE IS
50 AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH, SAFETY OR GENERAL
51 WELFARE; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE
52 SUPERVISOR WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEAL-
53 MENT OF THE ILLEGAL BUSINESS ACTIVITY; OR (IV) SUCH VIOLATION COULD
54 REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR.
55 (D) "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED FEDERAL,
56 STATE OR LOCAL STATUTE, LAW OR ORDINANCE; (II) ANY RULE OR REGULATION
A. 10271 5
1 PROMULGATED PURSUANT TO ANY SUCH STATUTE, LAW OR ORDINANCE; OR (III) THE
2 FINAL DECISION, RULING OR ORDER OF A JUDICIAL OR ADMINISTRATIVE BODY.
3 S 3. Paragraph (a) of subdivision 3 of section 75-b of the civil
4 service law, as added by chapter 660 of the laws of 1984, is amended to
5 read as follows:
6 (a) Where an employee is subject to dismissal or other disciplinary
7 action under a final and binding arbitration provision, or other disci-
8 plinary procedure contained in a collectively negotiated agreement, or
9 under section seventy-five of this title or any other provision of state
10 or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT
11 UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
12 believes THAT SUCH dismissal [or], other disciplinary action OR OTHER
13 PERSONNEL ACTION would not have been taken but for the conduct protected
14 under subdivision two of this section, he or she may assert such as a
15 defense before the designated arbitrator or hearing officer. The merits
16 of such defense shall be considered and determined as part of the arbi-
17 tration award or hearing officer decision of the matter. If there is a
18 finding that the dismissal or other disciplinary action is based solely
19 on a violation by the employer of such subdivision, the arbitrator or
20 hearing officer shall dismiss or recommend dismissal of the disciplinary
21 proceeding, as appropriate, and, if appropriate, reinstate the employee
22 with back pay, and, in the case of an arbitration procedure, may take
23 other appropriate action as is permitted in the collectively negotiated
24 agreement.
25 S 4. Section 75-b of the civil service law is amended by adding a new
26 subdivision 5 to read as follows:
27 5. EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS,
28 RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF.
29 SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND
30 WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS
31 FOR EMPLOYMENT.
32 S 5. This act shall take effect on the one hundred eightieth day after
33 it shall have become a law.
