Bill Text: NY S03683 | 2019-2020 | General Assembly | Introduced


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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-02-12 - REFERRED TO LABOR [S03683 Detail]

Download: New_York-2019-S03683-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          3683
                               2019-2020 Regular Sessions
                    IN SENATE
                                    February 12, 2019
                                       ___________
        Introduced  by  Sen. HOYLMAN -- 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  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, 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    §  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 or ordinance [or]; (ii) any  rule  or  regulation
    16  promulgated  pursuant  to  [any federal, state or local] such statute or
    17  ordinance; or (iii) any judicial or administrative decision,  ruling  or
    18  order.
    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.
                                                                   LBD01535-02-9

        S. 3683                             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
    11  [or  demotion  of],  demotion, penalization or discrimination against an
    12  employee or former employee, or other adverse [employment] action  taken
    13  against  an  employee or former employee [in the terms and conditions of
    14  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  regu-
    19  lation] illegal business activity 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.] "Agent" means any individ-
    22  ual, partnership, association, corporation or group of persons acting on
    23  behalf of an employer.
    24    (h) "Illegal business activity" means any practice, procedure,  action
    25  or  failure  to  act  by  an  employer,  or an employee or agent of such
    26  employer, taken in the course of the employer's business, whether or not
    27  within the scope of employment or agency, that is in  violation  of  any
    28  law,  rule or regulation punishable by imprisonment or civil or criminal
    29  penalty.
    30    2. Prohibitions. An employer shall not take any  retaliatory  [person-
    31  nel] action against an employee or former employee because such employee
    32  or  former  employee  does  any  of  the following while employed by the
    33  employer, whether or not within the scope of the employee's job duties:
    34    (a) discloses to a supervisor  or  a  public  body,  or  threatens  to
    35  [disclose]  make  a  disclosure  to  a  [supervisor or to a] public body
    36  unless the employer remedies the illegal business activity,  information
    37  about  an illegal business activity[, policy or practice of the employer
    38  that is in violation of law, rule or regulation which violation  creates
    39  and  presents  a substantial and specific danger to the public health or
    40  safety, or which constitutes health care fraud];
    41    (b) provides information to, or  testifies  before,  any  public  body
    42  conducting an investigation, hearing or inquiry into any such [violation
    43  of  a  law,  rule  or  regulation  by  such  employer]  illegal business
    44  activity; or
    45    (c) objects to, or refuses to participate in, any [such] illegal busi-
    46  ness activity[, policy or practice in violation of a law, rule or  regu-
    47  lation].
    48    3.  Application. The protection against retaliatory [personnel] action
    49  provided by paragraphs (a), (b) and  (c)  of  subdivision  two  of  this
    50  section  shall  apply  to  any  employee  who  in  good faith reasonably
    51  believes that an illegal business activity has occurred or  will  occur,
    52  based on information that the employee in good faith reasonably believes
    53  to  be  true;  provided  however that the protection against retaliatory
    54  action provided by paragraph (a) of  subdivision  two  of  this  section
    55  pertaining to disclosure to a public body shall not apply to an employee
    56  who  makes  such  disclosure  to  a  public body unless the employee has

        S. 3683                             3
     1  [brought] made a good faith effort to notify  his  or  her  employer  by
     2  bringing the illegal business activity[, policy or practice in violation
     3  of  law,  rule  or  regulation] to the attention of a supervisor [of the
     4  employer]  and  has  afforded  such employer a reasonable opportunity to
     5  correct such activity[, policy or practice]. Such employer  notification
     6  shall  not be required where: (a) the employer has not posted any notice
     7  required by subdivision eight of this section; (b) there is an  imminent
     8  and  serious  danger  to  the  public health or safety; (c) the employee
     9  reasonably believes that reporting to the supervisor would result  in  a
    10  destruction  of  evidence  or  other concealment of the illegal business
    11  activity; (d) such activity could reasonably  be  expected  to  lead  to
    12  endangering the welfare of a minor; (e) the employee reasonably believes
    13  that  reporting  to  the supervisor would result in physical harm to the
    14  employee or any other person; or (f) the  employee  reasonably  believes
    15  that  the  supervisor  is already aware of the illegal business activity
    16  and will not correct such activity.
    17    4. Violation; remedy. (a) An employee who has been the  subject  of  a
    18  retaliatory  [personnel]  action in violation of this section may insti-
    19  tute a civil action in a court of competent jurisdiction for  relief  as
    20  set  forth  in  subdivision  five  of this section within [one year] two
    21  years after the alleged retaliatory [personnel] action was taken.
    22    (b) Any action authorized by this section may be brought in the county
    23  in which the alleged retaliatory [personnel]  action  occurred,  in  the
    24  county  in  which the complainant resides, or in the county in which the
    25  employer has its principal place of business.  In any such  action,  the
    26  parties shall be entitled to a jury trial.
    27    (c)  [It  shall  be  a  defense to any action brought pursuant to this
    28  section that the personnel action was predicated upon grounds other than
    29  the employee's exercise of any rights protected by this section.] Except
    30  as otherwise provided in this section, a violation of  this  section  is
    31  established  when  the complainant demonstrates that a motivating factor
    32  for the retaliatory action violates subdivision  two  of  this  section.
    33  Remedies  for  violation  of  subdivision  two  of this section shall be
    34  limited solely to those provided in  paragraphs  (e),  (f)  and  (g)  of
    35  subdivision  five  of  this section if the employer demonstrates that it
    36  would have taken the same action in the  absence  of  the  impermissible
    37  motivating  factor. It shall [also] be a defense that the individual was
    38  an independent contractor.
    39    [(d) Notwithstanding the provisions of paragraphs (a) and (c) of  this
    40  subdivision, a health care employee who has been the subject of a retal-
    41  iatory  action  by  a health care employer in violation of section seven
    42  hundred forty-one of this article may institute  a  civil  action  in  a
    43  court  of  competent jurisdiction for relief as set forth in subdivision
    44  five of this section within two  years  after  the  alleged  retaliatory
    45  personnel  action was taken. In addition to the relief set forth in that
    46  subdivision, the court, in its discretion, based upon a finding that the
    47  employer acted in bad faith in the retaliatory action,  may  assess  the
    48  employer  a  civil  penalty  of  an  amount  not  to exceed ten thousand
    49  dollars, to be paid to the  improving  quality  of  patient  care  fund,
    50  established  pursuant  to section ninety-seven-aaaa of the state finance
    51  law.]
    52    5. Relief. In any action brought pursuant to subdivision four of  this
    53  section, the court may order relief as follows:
    54    (a) [an injunction to restrain continued violation of this section;

        S. 3683                             4

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

        S. 3683                             5

     1  is within the scope of his employment, and which is in violation of  any
     2  federal, state or local law, rule or regulation], or which could reason-
     3  ably  be  expected  to  lead to endangering the welfare of a minor; (ii)
     4  provides information to, or testifies before, any public body conducting
     5  an  investigation,  hearing  or  inquiry  into any violation or improper
     6  governmental action; or (iii) objects to, or refuses to participate  in,
     7  any such violation or improper governmental action.
     8    (b)  The  protection  against  retaliatory action provided in subpara-
     9  graphs (i) and (ii) of paragraph (a) of this subdivision shall apply  to
    10  any  employee  who in good faith reasonably believes that a violation or
    11  improper governmental action has occurred or will occur, based on infor-
    12  mation that the employee in good faith reasonably believes to be true.
    13    (c) "Improper governmental action" shall mean any practice, procedure,
    14  action or failure to act by a public employer or employee, or  an  agent
    15  of  such employer or employee, which is undertaken in the performance of
    16  such agent's official duties, whether or not such action is  within  the
    17  scope of such person's employment, and which is in violation of any law,
    18  rule or regulation regarding governmental action punishable by imprison-
    19  ment  or  civil or criminal penalty. "Law, rule or regulation" includes:
    20  (i) any duly enacted federal, state or local statute or ordinance;  (ii)
    21  any rule or regulation promulgated pursuant to any such statute or ordi-
    22  nance;  or  (iii)  any  judicial  or  administrative decision, ruling or
    23  order.
    24    § 4. Subdivision 3 of section 75-b of the civil service law, as  added
    25  by chapter 660 of the laws of 1984, is amended to read as follows:
    26    3. (a) Where an employee is subject to dismissal or other disciplinary
    27  action  under a final and binding arbitration provision, or other disci-
    28  plinary procedure contained in a collectively negotiated  agreement,  or
    29  under section seventy-five of this title or any other provision of state
    30  or  local law, or to the elimination of job title or classification that
    31  uniquely fits and singles out such employee and the employee  reasonably
    32  believes  that  such  dismissal [or], other disciplinary action or other
    33  adverse action would not have been taken but for the  conduct  protected
    34  under  subdivision  two  of this section, he or she may assert such as a
    35  defense before the designated arbitrator or hearing officer. The  merits
    36  of  such defense shall be considered and determined as part of the arbi-
    37  tration award or hearing officer decision of the matter. If there  is  a
    38  finding  that the dismissal or other disciplinary action is based solely
    39  on a violation by the employer of such subdivision,  the  arbitrator  or
    40  hearing officer shall dismiss or recommend dismissal of the disciplinary
    41  proceeding,  as appropriate, and, if appropriate, reinstate the employee
    42  with back pay, and, in the case of an arbitration  procedure,  may  take
    43  other  appropriate action as is permitted in the collectively negotiated
    44  agreement.
    45    (b) Where an employee is subject to a collectively  negotiated  agree-
    46  ment  which  contains  provisions  preventing  an  employer  from taking
    47  adverse [personnel] actions and which contains a final and binding arbi-
    48  tration provision to resolve alleged violations of  such  provisions  of
    49  the agreement and the employee reasonably believes that such [personnel]
    50  action  would  not  have  been taken but for the conduct protected under
    51  subdivision two of this section, he or she may assert such  as  a  claim
    52  before  the  arbitrator.  The  arbitrator  shall consider such claim and
    53  determine its merits and shall, if a determination  is  made  that  such
    54  adverse  [personnel] ion is based on a violation by the employer of such
    55  subdivision, take such action to remedy the violation as is permitted by
    56  the collectively negotiated agreement.

        S. 3683                             6
     1    (c) [Where] In addition to or in lieu of the procedures set  forth  in
     2  paragraphs  (a) and (b) of this subdivision, or where an employee is not
     3  subject to any of the provisions of [paragraph (a) or (b) of this subdi-
     4  vision] such paragraphs, the employee may commence an action in a  court
     5  of  competent  jurisdiction  under the same terms and conditions and for
     6  the same relief as set forth in article twenty-C of the labor law.
     7    § 5. Section 75-b of the civil service law is amended by adding a  new
     8  subdivision 5 to read as follows:
     9    5.  Every public employer shall inform employees of their protections,
    10  rights and obligations under this section, by posting a notice  thereof.
    11  Such  notices  shall  be  posted  conspicuously in easily accessible and
    12  well-lighted places customarily frequented by employees  and  applicants
    13  for employment.
    14    §  6.  This  act shall take effect on the ninetieth day after it shall
    15  have become a law.
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