Bill Text: NY S00680 | 2009-2010 | General Assembly | Introduced
Bill Title: Prohibits certain adverse actions by public employers to be taken against public employees and provides remedies for violations and increases the scope of protected employee activity; includes elimination of job title or classification within the meaning of personnel action; protects disclosure of a violation which could reasonably be expected to lead to endangering the welfare of a minor, including but not limited to physical, mental, or sexual misuse or abuse; authorizes an employee to proceed in a court of competent jurisdiction to prohibit a public employer from taking adverse personnel action.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2010-01-06 - REFERRED TO CIVIL SERVICE AND PENSIONS [S00680 Detail]
Download: New_York-2009-S00680-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
680
2009-2010 Regular Sessions
I N S E N A T E
January 12, 2009
___________
Introduced by Sens. LARKIN, GOLDEN, GRIFFO, LEIBELL -- read twice and
ordered printed, and when printed to be committed to the Committee on
Civil Service and Pensions
AN ACT to amend the civil service law, in relation to retaliatory
actions by public employers taken against public employees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 75-b of the civil service law, as added by chapter
2 660 of the laws of 1984, paragraph (a) of subdivision 2 as amended by
3 chapter 899 of the laws of 1986, is amended to read as follows:
4 S 75-b. Retaliatory action by public employers. 1. For the purposes of
5 this section the term:
6 (a) "Public employer" or "employer" shall mean (i) the state of New
7 York, (ii) a county, city, town, village, or any other political subdi-
8 vision or civil division of the state, (iii) a school district or any
9 governmental entity operating a public school, college or university,
10 (iv) a public improvement or special district, (v) a public authority,
11 commission or public benefit corporation, or (vi) any other public
12 corporation, agency, instrumentality or unit of government which exer-
13 cises governmental power under the laws of the state.
14 (b) "Public employee" or "employee" shall mean any person holding a
15 position by appointment or employment in the service of a public employ-
16 er, except judges or justices of the unified court system and members of
17 the legislature.
18 (c) "Governmental body" shall mean (i) an officer, employee, agency,
19 department, division, bureau, board, commission, council, authority or
20 other body of a public employer, (ii) employee, committee, member[,] or
21 commission of the legislative branch of government, (iii) a represen-
22 tative, member or employee of a legislative body of a county, town,
23 village, or any other political subdivision or civil division of the
24 state, (iv) a law enforcement agency or any member or employee of a law
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05303-01-9
S. 680 2
1 enforcement agency, or (v) the judiciary or any employee of the judici-
2 ary.
3 (d) "Personnel action" shall mean an action affecting compensation,
4 appointment, promotion, transfer, ELIMINATION OF JOB TITLE OR CLASSI-
5 FICATION, assignment, reassignment, reinstatement or evaluation of
6 performance.
7 2. (a) A public employer shall not dismiss or take other disciplinary
8 or other adverse personnel action against a public employee regarding
9 the employee's employment because the employee discloses to a govern-
10 mental body information: (i) regarding a violation of a law, rule or
11 regulation, which violation creates and presents a substantial and
12 specific danger to the public health or safety, OR WHICH COULD REASON-
13 ABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR, INCLUD-
14 ING BUT NOT LIMITED TO PHYSICAL, MENTAL OR SEXUAL MISUSE OR ABUSE; or
15 (ii) which the employee reasonably believes to be true and reasonably
16 believes constitutes an improper governmental action. "Improper govern-
17 mental action" shall mean any action by a public employer or employee,
18 or an agent of such employer or employee, which is undertaken in the
19 performance of such agent's official duties, whether or not such action
20 is within the scope of his OR HER employment, and which is in violation
21 of any federal, state or local law, rule or regulation.
22 (b) Prior to disclosing information pursuant to paragraph (a) of this
23 subdivision, an employee shall have made a good faith effort to provide
24 the appointing authority or his or her designee the information to be
25 disclosed and shall [provide] HAVE PROVIDED the appointing authority or
26 designee a reasonable time to take appropriate action, unless (I) there
27 is imminent and serious danger to public health or safety, OR (II) SUCH
28 VIOLATION COULD REASONABLY BE EXPECTED TO RAPIDLY LEAD TO ENDANGERING
29 THE WELFARE OF A MINOR, INCLUDING BUT NOT LIMITED TO PHYSICAL, MENTAL OR
30 SEXUAL MISUSE OR ABUSE. For the purposes of this subdivision, an
31 employee who acts pursuant to this paragraph shall be deemed to have
32 disclosed information to a governmental body under paragraph (a) of this
33 subdivision.
34 3. (a) Where an employee is subject to dismissal or other disciplinary
35 action under a final and binding arbitration provision, or other disci-
36 plinary procedure contained in a collectively negotiated agreement, or
37 under section seventy-five of this title or any other provision of state
38 or local law, OR THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT
39 UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
40 believes THAT SUCH dismissal [or], other disciplinary action, OR ANY
41 OTHER ADVERSE PERSONNEL ACTION would not have been taken but for the
42 conduct protected under subdivision two of this section, he or she may
43 assert such as a defense before the designated arbitrator or hearing
44 officer. The merits of such defense shall be considered and determined
45 as part of the arbitration award or hearing officer decision of the
46 matter. If there is a finding that the dismissal [or], other discipli-
47 nary action, OR OTHER PERSONNEL ACTION is based [solely] PRIMARILY on a
48 violation by the employer of such subdivision, the arbitrator or hearing
49 officer shall dismiss or recommend dismissal of the disciplinary
50 proceeding, as appropriate, and, if appropriate, reinstate the employee
51 with back pay, and, in the case of an arbitration procedure, may take
52 other appropriate action as is permitted in the collectively negotiated
53 agreement.
54 (b) Where an employee is subject to a collectively negotiated agree-
55 ment which contains provisions preventing an employer from taking
56 adverse personnel actions and which contains a final and binding arbi-
S. 680 3
1 tration provision to resolve alleged violations of such provisions of
2 the agreement and the employee reasonably believes that such personnel
3 action would not have been taken but for the conduct protected under
4 subdivision two of this section, he or she may assert such as a claim
5 before the arbitrator. The arbitrator shall consider such claim and
6 determine its merits and shall, if a determination is made that such
7 adverse personnel action is based on a violation by the employer of such
8 subdivision, take such action to remedy the violation as is permitted by
9 the collectively negotiated agreement.
10 (B-1) WHERE AN EMPLOYEE IS THE SUBJECT OF AN ADVERSE PERSONNEL ACTION,
11 SUCH AS THE ELIMINATION OF A JOB TITLE OR CLASSIFICATION THAT UNIQUELY
12 FITS AND SINGLES OUT SUCH EMPLOYEE, AND ACTION IS NOT AN ADVERSE PERSON-
13 NEL ACTION THAT IS SUBJECT TO A HEARING, AND THE EMPLOYEE REASONABLY
14 BELIEVES THAT SUCH PERSONNEL ACTION WOULD NOT HAVE BEEN TAKEN BUT FOR
15 THE CONDUCT PROTECTED UNDER SUBDIVISION TWO OF THIS SECTION, SUCH
16 EMPLOYEE MAY BRING AN ACTION OR PROCEEDING IN A COURT OF COMPETENT
17 JURISDICTION TO PROHIBIT SUCH PUBLIC EMPLOYER FROM TAKING SUCH ACTION.
18 THE COURT SHALL CONSIDER SUCH CLAIM AND DETERMINE ITS MERITS; PROVIDED,
19 THAT THE PUBLIC EMPLOYER MAY PRESENT EVIDENCE THAT THE ADVERSE PERSONNEL
20 ACTION WAS TAKEN INDEPENDENTLY OF THE EMPLOYEE'S CONDUCT PURSUANT TO
21 SUBDIVISION TWO OF THIS SECTION. A CLAIM OF AN INDEPENDENT, ADVERSE
22 PERSONNEL ACTION BY A PUBLIC EMPLOYER MUST BE PROVEN BY THE AFFECTED
23 EMPLOYEE BY A PREPONDERANCE OF THE EVIDENCE. THE COURT MAY AWARD
24 REASONABLE ATTORNEYS' FEES, COSTS, AND DISBURSEMENTS TO A PREVAILING
25 PLAINTIFF EMPLOYEE.
26 (c) Where an employee is not subject to any of the provisions of para-
27 graph (a) or (b) of this subdivision, the employee may commence an
28 action in a court of competent jurisdiction under the same terms and
29 conditions as set forth in article twenty-C of the labor law.
30 4. Nothing in this section shall be deemed to diminish or impair the
31 rights of a public employee or employer under any law, rule, regulation,
32 or collectively negotiated agreement or to prohibit any personnel action
33 which otherwise would have been taken regardless of any disclosure of
34 information.
35 S 2. This act shall take effect immediately.
