Bill Text: NY S01517 | 2011-2012 | 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 5-0)
Status: (Introduced - Dead) 2012-01-04 - REFERRED TO LABOR [S01517 Detail]
Download: New_York-2011-S01517-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1517
2011-2012 Regular Sessions
I N S E N A T E
January 10, 2011
___________
Introduced by Sens. KLEIN, ADDABBO, OPPENHEIMER, SAVINO -- read twice
and ordered printed, and when printed to be committed 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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05005-01-1
S. 1517 2
1 (iii) any federal, state, or local regulatory, administrative, or
2 public agency or authority, or instrumentality thereof; [or]
3 (iv) any federal, state, or local law enforcement agency, prosecutori-
4 al office, or police or peace officer;
5 (V) ANY FEDERAL, STATE OR LOCAL DEPARTMENT OF AN EXECUTIVE BRANCH OF
6 GOVERNMENT; OR
7 (VI) ANY DIVISION, BOARD, BUREAU, OFFICE, COMMITTEE OR COMMISSION OF
8 ANY OF THE PUBLIC BODIES DESCRIBED IN SUBPARAGRAPHS (I) THROUGH (V) OF
9 THIS PARAGRAPH.
10 (e) "Retaliatory personnel action" means the discharge, suspension [or
11 demotion of], DEMOTION OR DISCRIMINATION AGAINST an employee, [or other
12 adverse employment action taken against an employee in the terms and
13 conditions of employment] REGARDING TERMS, CONDITIONS, LOCATION OR PRIV-
14 ILEGES OF EMPLOYMENT.
15 (f) "Supervisor" means any individual within an employer's organiza-
16 tion who has the authority to direct and control the work performance of
17 [the affected] AN employee; or who has [managerial] authority to take
18 corrective action regarding the violation of the law, rule or regulation
19 of which the employee complains.
20 (g) "Health care fraud" means health care fraud as defined by article
21 one hundred seventy-seven of the penal law.
22 (H) "FINANCIAL FRAUD" MEANS AN ACTIVITY WHICH IS A MISDEMEANOR OR
23 FELONY UNDER THE BANKING LAW OR ANY OF THE PROVISIONS OF LAW REFERRED TO
24 IN SECTION SEVENTY-EIGHT OF THE BANKING LAW.
25 (I) "INSURANCE FRAUD" SHALL HAVE THE SAME MEANING AS IS ASCRIBED TO
26 SUCH TERM PURSUANT TO SECTION 176.05 OF THE PENAL LAW.
27 2. Prohibitions. An employer shall not take any retaliatory personnel
28 action against an employee because such employee does any of the follow-
29 ing:
30 (a) discloses, or threatens to disclose to a supervisor or to a public
31 body an activity, policy or practice of the employer that is in
32 violation of A law, rule or regulation [which] THE EMPLOYEE REASONABLY
33 BELIEVES EVINCES AN ABUSE OF AUTHORITY, THE MISMANAGEMENT OR WASTE OF
34 PUBLIC ASSETS OR MONIES, OR IS A THREAT TO THE ENVIRONMENT WHERE SUCH
35 violation creates and presents a substantial and specific danger to the
36 public health [or], safety OR GENERAL WELFARE, or which constitutes
37 health care fraud, INSURANCE FRAUD OR FINANCIAL FRAUD;
38 (b) provides information to, or testifies before, any public body
39 conducting an investigation, hearing or inquiry into any such violation
40 of a law, rule or regulation by such employer; or
41 (c) objects to, or refuses to participate in any such activity, policy
42 or practice in violation of a law, rule or regulation.
43 3. Application. The protection against retaliatory personnel action
44 provided by PARAGRAPHS (A) AND (B) OF SUBDIVISION TWO OF THIS SECTION
45 SHALL APPLY TO ANY EMPLOYEE WHO BELIEVES THAT AN ACTIVITY, POLICY OR
46 PRACTICE IN VIOLATION OF A LAW, RULE OR REGULATION HAS OCCURRED OR WILL
47 OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE REASONABLY BELIEVES TO BE
48 TRUE; PROVIDED HOWEVER THAT THE PROTECTION AGAINST RETALIATORY PERSONNEL
49 ACTION PROVIDED BY paragraph (a) of subdivision two of this section
50 pertaining to disclosure to a public body shall not apply to an employee
51 who makes such disclosure to a public body unless the employee has
52 [brought] MADE A GOOD FAITH EFFORT TO NOTIFY HIS OR HER EMPLOYER BY
53 BRINGING the activity, policy or practice in violation of law, rule or
54 regulation to the attention of a supervisor of the employer and has
55 afforded such employer a reasonable opportunity to correct such activ-
56 ity, policy or practice. EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED
S. 1517 3
1 WHERE: (A) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVI-
2 SION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER
3 TO THE PUBLIC HEALTH, SAFETY OR GENERAL WELFARE; (C) THE EMPLOYEE
4 REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN A
5 DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE ILLEGAL BUSINESS
6 ACTIVITY; OR (D) SUCH VIOLATION COULD REASONABLY BE EXPECTED TO LEAD TO
7 ENDANGERING THE WELFARE OF A MINOR.
8 4. Violation; remedy. (a) An employee who has been the subject of a
9 retaliatory personnel action in violation of this section may institute
10 a civil action in a court of competent jurisdiction for relief as set
11 forth in subdivision five of this section within [one year] TWO YEARS
12 after the alleged retaliatory personnel action was taken.
13 (b) Any action authorized by this section may be brought in the county
14 in which the alleged retaliatory personnel action occurred, in the coun-
15 ty in which the complainant resides, or in the county in which the
16 employer has its principal place of business.
17 (c) It shall be a defense to any action brought pursuant to this
18 section that the personnel action was predicated upon grounds other than
19 the employee's exercise of any rights protected by this section. It
20 shall also be a defense that the individual was an independent contrac-
21 tor.
22 (d) Notwithstanding the provisions of paragraphs (a) and (c) of this
23 subdivision, a health care employee who has been the subject of a retal-
24 iatory action by a health care employer in violation of section seven
25 hundred forty-one of this article may institute a civil action in a
26 court of competent jurisdiction for relief as set forth in subdivision
27 five of this section within two years after the alleged retaliatory
28 personnel action was taken. In addition to the relief set forth in
29 [that] SUCH subdivision, the court, in its discretion, based upon a
30 finding that the employer acted in bad faith in the retaliatory action,
31 may assess the employer a civil penalty of an amount not to exceed ten
32 thousand dollars, to be paid to the improving quality of patient care
33 fund, established pursuant to section ninety-seven-aaaa of the state
34 finance law.
35 5. Relief. In any action brought pursuant to subdivision four of this
36 section, the court may order relief as follows:
37 (a) an injunction to restrain continued violation of this section;
38 (b) the reinstatement of the employee to the same position held before
39 the retaliatory personnel action, or to an equivalent position;
40 (c) the reinstatement of full fringe benefits and seniority rights;
41 (d) the compensation for lost wages, benefits and other remuneration;
42 [and]
43 (e) the payment by the employer of reasonable costs, disbursements,
44 and attorney's fees;
45 (F) AN INJUNCTION TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF
46 THIS SECTION WITH RESPECT TO THE EMPLOYEE; AND
47 (G) A CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS,
48 IF THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD
49 FAITH IN THE RETALIATORY ACTION.
50 6. Employer relief. A court, in its discretion, may also order that
51 reasonable attorneys' fees and court costs and disbursements be awarded
52 to an employer if the court determines that an action brought by an
53 employee under this section was without REASONABLE basis in law or in
54 fact.
55 7. Existing rights. Nothing in this section shall be deemed to dimin-
56 ish the rights, privileges, or remedies of any employee under any other
S. 1517 4
1 law or regulation or under any collective bargaining agreement or
2 employment contract; except that the institution of an action in accord-
3 ance with this section shall be deemed a waiver of the rights and reme-
4 dies available under any other contract, collective bargaining agree-
5 ment, law, rule or regulation or under the common law.
6 8. PUBLICATION. EVERY EMPLOYER SHALL INFORM EMPLOYEES OF THEIR
7 PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A
8 NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY
9 ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
10 AND APPLICANTS FOR EMPLOYMENT. THE DEPARTMENT SHALL PREPARE AND POST ON
11 ITS INTERNET WEBSITE A NOTICE THAT EMPLOYERS MAY USE TO COMPLY WITH THE
12 PROVISIONS OF THIS SUBDIVISION.
13 S 2. Subdivision 2 of section 75-b of the civil service law, as added
14 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
15 ter 899 of the laws of 1986, is amended to read as follows:
16 2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE OR
17 DISCRIMINATE or take other disciplinary or other adverse personnel
18 action against a public employee regarding the employee's employment
19 because the employee discloses TO A GOVERNMENTAL BODY OR THREATENS TO
20 DISCLOSE IF AN ACTIVITY, POLICY OR PRACTICE IN VIOLATION OF A LAW, RULE
21 OR REGULATION IS NOT REMEDIED, to a governmental body information: (i)
22 regarding a violation of a law, rule or regulation which violation
23 creates and presents a substantial and specific danger to the public
24 health [or], safety OR GENERAL WELFARE; or (ii) which the employee
25 reasonably believes to be true and reasonably believes, OR WHICH consti-
26 tutes an improper governmental action; OR (III) WHICH COULD REASONABLY
27 BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; OR (IV) WHICH
28 PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING
29 AN INVESTIGATION, HEARING OR INQUIRY INTO ANY IMPROPER GOVERNMENTAL
30 ACTION; OR (V) WHICH OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY
31 IMPROPER GOVERNMENTAL ACTION. "Improper governmental action" shall mean
32 any action by a public employer or employee, or an agent of such employ-
33 er or employee, which is undertaken in the performance of such agent's
34 official duties, whether or not such action is within the scope of his
35 employment, and which is in violation of any federal, state or local
36 law, rule or regulation.
37 (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN
38 PARAGRAPH (A) OF THIS SUBDIVISION SHALL APPLY TO ANY EMPLOYEE WHO IN
39 GOOD FAITH REASONABLY BELIEVES THAT A VIOLATION OR IMPROPER GOVERNMENTAL
40 ACTION HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOY-
41 EE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
42 (C) Prior to disclosing information pursuant to paragraph (a) of this
43 subdivision, an employee shall have made a good faith effort to provide
44 the appointing authority or his or her designee the information to be
45 disclosed and shall provide the appointing authority or designee a
46 reasonable time to take appropriate action unless there is imminent and
47 serious danger to public health or safety. For the purposes of this
48 subdivision, an employee who acts pursuant to this paragraph shall be
49 deemed to have disclosed information to a governmental body under para-
50 graph (a) of this subdivision. NOTIFICATION TO THE APPOINTING AUTHORITY
51 OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I) THE EMPLOYER HAS NOT POSTED
52 ANY NOTICE REQUIRED BY SUBDIVISION FIVE OF THIS SECTION; (II) THERE IS
53 AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH, SAFETY OR GENERAL
54 WELFARE; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE
55 SUPERVISOR WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEAL-
S. 1517 5
1 MENT OF THE ILLEGAL BUSINESS ACTIVITY; OR (IV) SUCH VIOLATION COULD
2 REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR.
3 (D) "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED FEDERAL,
4 STATE OR LOCAL STATUTE, LAW OR ORDINANCE; (II) ANY RULE OR REGULATION
5 PROMULGATED PURSUANT TO ANY SUCH STATUTE, LAW OR ORDINANCE; OR (III) THE
6 FINAL DECISION, RULING OR ORDER OF A JUDICIAL OR ADMINISTRATIVE BODY.
7 S 3. Paragraph (a) of subdivision 3 of section 75-b of the civil
8 service law, as added by chapter 660 of the laws of 1984, is amended to
9 read as follows:
10 (a) Where an employee is subject to dismissal or other disciplinary
11 action under a final and binding arbitration provision, or other disci-
12 plinary procedure contained in a collectively negotiated agreement, or
13 under section seventy-five of this title or any other provision of state
14 or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT
15 UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
16 believes THAT SUCH dismissal [or], other disciplinary action OR OTHER
17 PERSONNEL ACTION would not have been taken but for the conduct protected
18 under subdivision two of this section, he or she may assert such as a
19 defense before the designated arbitrator or hearing officer. The merits
20 of such defense shall be considered and determined as part of the arbi-
21 tration award or hearing officer decision of the matter. If there is a
22 finding that the dismissal or other disciplinary action is based solely
23 on a violation by the employer of such subdivision, the arbitrator or
24 hearing officer shall dismiss or recommend dismissal of the disciplinary
25 proceeding, as appropriate, and, if appropriate, reinstate the employee
26 with back pay, and, in the case of an arbitration procedure, may take
27 other appropriate action as is permitted in the collectively negotiated
28 agreement.
29 S 4. Section 75-b of the civil service law is amended by adding a new
30 subdivision 5 to read as follows:
31 5. EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS,
32 RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF.
33 SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND
34 WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS
35 FOR EMPLOYMENT.
36 S 5. This act shall take effect on the one hundred eightieth day after
37 it shall have become a law.
