New York State Assembly

 
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AB5757 Summary:

AB5757 Actions:

AB5757 Committee Votes:

Committee:LABOR   Chair:Titus      
DATE:05/23/2017AYE/NAY:18/8  Action: Favorable refer to committee Codes        
Titus
Aye
Brabenec
Nay
Abbate
Aye
Crouch
Nay
Perry
Absent
Fitzpatrick
Nay
Ortiz
Aye
Curran
Nay
Colton
Aye
DiPietro
Nay
Benedetto
Aye
Castorina
Nay
Hevesi
Absent
Byrne
Nay
Zebrowski
Aye
Morinello
Nay
Miller
Aye
Bronson
Aye
Rodriguez
Aye
Moya
Aye
DenDekker
Aye
Mayer
Excused
Skoufis
Aye
Rozic
Aye
Simon
Aye
Steck
Aye
Joyner
Aye
Barnwell
Aye
Carroll
Aye

Committee:CODES   Chair:Lentol      
DATE:06/06/2017AYE/NAY:16/6  Action: Favorable refer to committee Rules        
Lentol
Aye
Graf
Nay
Schimminger
Aye
Giglio
Nay
Weinstein
Aye
McKevitt
Nay
Pretlow
Aye
Montesano
Nay
Cook
Aye
Ra
Nay
Cymbrowitz
Aye
Morinello
Nay
Titus
Aye
O'Donnell
Aye
Lavine
Aye
Perry
Aye
Zebrowski
Aye
Abinanti
Aye
Weprin
Aye
Mosley
Aye
Hevesi
Aye
Fahy
Aye

Committee:RULES   Chair:Heastie      
DATE:06/07/2017AYE/NAY:28/0  Action: Favorable         
Heastie
Aye
Kolb
Excused
Gottfried
Aye
Oaks
Aye
Lentol
Aye
Butler
Aye
Farrell
Aye
Crouch
Aye
Gantt
Aye
Finch
Aye
Nolan
Aye
Barclay
Aye
Weinstein
Aye
Raia
Aye
Hooper
Excused
Hawley
Aye
Ortiz
Aye
Pretlow
Aye
Cook
Aye
Glick
Aye
Morelle
Aye
Aubry
Aye
Englebright
Aye
Dinowitz
Aye
Colton
Aye
Magnarelli
Excused
Perry
Aye
Galef
Aye
Paulin
Aye
Titus
Aye
Peoples-Stokes
Aye

AB5757 Floor Votes:

AB5757 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A5757
 
SPONSOR: Benedetto

 
TITLE OF BILL:  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
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
The bill provides greater protections for "whistleblower" employees who
disclose information about illegal activities of their employers.  This
bill expands whistleblower protections to include public employees &
former employees.
 
 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition of
"law, rule or regulation," to clearly include state, local and federal
laws, rules or regulations and state, local and federal judicial and
administrative decisions. It clarifies the definition of "public body"
to include any department of the executive branch and any division,
board or bureau of any public body. Expands the term "retaliatory
action" to include the penalization or discrimination against an employ-
ee or former employee who "blew the whistle".
 
This section also specifies that an employee will be protected against
retaliatory action for disclosure of employer activity that the employee
in good faith reasonably believes has occurred or will occur and in good
faith reasonably believes constitutes illegal business activity.
 
Adds a "good faith" requirement relating to the effort of the employee
to bring an illegal activity to the attention of the employer in order
to be protected, and creates certain exceptions when such prior to
notice to employer is not necessary. It also extends the statute of
limitations from one year to two years for bringing a civil action for
retaliatory action by an employer. Further, it requires employers to
inform their employees of their rights under this section.
 
Adds a right to a jury trial.
 
Adds remedies for whistleblowers who suffer impermissible retaliatory
actions, and restricts situations when employer is entitled, in court's
discretion, to attorney's fees when successful.
 
Section 2: Amends Labor. Law section 741, which allows a health care
employee to seek enforcement of section 741 pursuant to Labor Law
section 740 to conform to the above amendments to Labor Law section 740.
 
Section 3: Amends Civil Service Law 75-b (2) by: A) Adding protections,
to create parity for whistleblower protections for public employees as
for private employees under Labor Law 740; and B) Limiting prior notifi-
cation to employer requirements.
 
Section 4: Amends Civil Service Law 75-b (3) to include under the defi-
nition of retaliatory action, the elimination of a job title that
uniquely singles out such employee.
 
 
 
Section 5: Adds a new Civil Service Law 75-b (5) to require all public
employers to inform their employees of their whistle blower rights under
this Section of law.
 
 
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
 
Labor Law § 740 prohibits private employers from firing or taking any
other adverse employment action against an employee who refuses to
participate in an illegal business activity, or who discloses such ille-
gal activity to a public body, if the illegal activity presents a
"substantial and specific danger to the public health or safety."  This
protection does not apply, however, unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the behavior. Civil Service Law §
75-b prohibits public employers from firing or taking any other adverse
employment action against a public employee who discloses information:
 
(1) regarding a violation of a law, rule or regulation presenting a
substantial and specific danger to the public health and safety; or
 
(2) regarding any action by a Public employer which the employee reason-
ably believes constitutes a violation of any federal, state or local
law, rule or regulation. Prior to disclosing the information, the
employee must make a good faith effort to inform his or her employer and
to give the employer a reasonable time to take appropriate action,
unless there is an imminent and serious danger to the public health or
safety.
 
 
JUSTIFICATION:
 
In 1984, private and public employees in New York State who report ille-
gal or improper activities by their employers are given certain
Protections under New York's whistleblower protection law.  Unfortunate-
ly, there are several weaknesses in the current whistleblower law. These
weaknesses greatly limit the protections provided to employees. Further,
it deters honest employees from revealing illegal activities of their
employers, out of the legitimate fear that they will be dismissed or
otherwise retaliated against for reporting such violations.
 
First, Labor Law § 740 only protects employees who disclose illegal
activities that present a "substantial and specific danger to the public
health or safety." Thus, if an employee becomes aware that his or her
employer is knowingly defrauding its customers, or stealing from govern-
ment authorities, for example, the whistleblower law will provide no
protection to the employee. This bill's amendment maintains the current
protections for employees who blow the whistle on public health or safe-
ty violations or health care fraud, but expands that protection to
employees who blow the whistle on any "illegal business activity."
 
Second, a private employee who in good faith reasonably believes that
his or her employer has engaged in actions which the employee in good
faith reasonably believes constitute a violation of law can be termi-
nated for revealing that information to government authorities or the
employer, if it turns out that no violation can be proved in court. The.
Civil Service Law was amended in 1986 to protect public employees who
reasonably believe that a violation has occurred, but private employees
still do not have that protection.
 
New York's whistleblower statutes are also not especially effective
because they generally do not apply unless the employee has brought the
illegal behavior to the attention of a supervisor and has given the
employer an opportunity to correct the illegal behavior.  Unfortunately,
many employees do not know of this requirement, and are never told by
their employers that they can be fired if they do not first tell the
employer of the illegal activity. The employer notification requirement
set forth in Labor Law § 740 means that private employees, unlike public
employees under Civil Service Law § 75-b, can be fired for reporting
violations, unreported to the employer, even where such present an immi-
nent and serious threat.
 
Although Labor Law § 740 prohibits adverse employment actions against
private employees who refuse to participate in illegal business activ-
ities, Civil Service Law § 75-b does not contain a similar provision.
This means that public employees can be fired for refusing to violate
the law. Finally, the remedies available to employees under Labor Law §
740 are clearly inadequate, and the right to a jury trial is not
provided for.
 
This bill addresses these numerous defects in the current Whistieblower.
statutes. It implements certain recommendations made by New York State
Law Revision Commission following a five year study of the law, and
enacts, for all employees, protections similar to those extended by
Labor Law § 741 to healthcare workers during the 2002 legislative
session.
 
New York State should encourage, not discourage, employees who wish to
report violations of law by their employers. Although the "Whistleblower
Law" enacted in 1984 was a good first step, experience over the past 25
years has shown that the law is simply inadequate.  By making the neces-
sary reforms to strengthen the law, this bill will act as a deterrent to
employer's who might otherwise engage in illegal activity, will protect
the public from such wrongdoing, and will ensure that the honest and
law-abiding employees who have the courage to reveal illegal activities
are protected against retaliation by their employers.
 
 
PRIOR LEGISLATIVE HISTORY:
 
A.5754 2015/2016
A.5696-A 2014
 
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
 
This bill is fiscally neutral.
 
 
EFFECTIVE DATE:
This act shall take effect 90 days after it shall have become a law.

AB5757 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5757
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 15, 2017
                                       ___________
 
        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  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.
                                                                   LBD01270-01-7
        A. 5757                             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
        A. 5757                             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;
        A. 5757                             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
        A. 5757                             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) Prior to disclosing information pursuant to  subparagraph  (i)  of
    14  paragraph  (a)  of  this subdivision, an employee shall have made a good
    15  faith effort to provide the appointing authority or his or her  designee
    16  the information to be disclosed and shall provide the appointing author-
    17  ity  or  designee  a  reasonable  time to take appropriate action unless
    18  there is imminent and serious danger to public health or safety. For the
    19  purposes of this subdivision, an employee  who  acts  pursuant  to  this
    20  paragraph  shall  be  deemed  to have disclosed information to a govern-
    21  mental body under paragraph (a) of this subdivision.    Notification  to
    22  the  appointing  authority  or designee shall not be required where: (i)
    23  the employer has not posted any notice required by subdivision  five  of
    24  this section; (ii) there is an imminent and serious danger to the public
    25  health  or safety; (iii) the employee reasonably believes that reporting
    26  to the appointing authority or designee would result in a destruction of
    27  evidence or other concealment of the improper  governmental  action;  or
    28  (iv)  such  activity could reasonably be expected to lead to endangering
    29  the welfare of a minor.
    30    (d) "Improper governmental action" shall mean any practice, procedure,
    31  action or failure to act by a public employer or employee, or  an  agent
    32  of  such employer or employee, which is undertaken in the performance of
    33  such agent's official duties, whether or not such action is  within  the
    34  scope of such person's employment, and which is in violation of any law,
    35  rule or regulation regarding governmental action punishable by imprison-
    36  ment  or  civil or criminal penalty. "Law, rule or regulation" includes:
    37  (i) any duly enacted federal, state or local statute or ordinance;  (ii)
    38  any rule or regulation promulgated pursuant to any such statute or ordi-
    39  nance;  or  (iii)  any  judicial  or  administrative decision, ruling or
    40  order.
    41    § 4. Subdivision 3 of section 75-b of the civil service law, as  added
    42  by chapter 660 of the laws of 1984, is amended to read as follows:
    43    3. (a) Where an employee is subject to dismissal or other disciplinary
    44  action  under a final and binding arbitration provision, or other disci-
    45  plinary procedure contained in a collectively negotiated  agreement,  or
    46  under section seventy-five of this title or any other provision of state
    47  or  local law, or to the elimination of job title or classification that
    48  uniquely fits and singles out such employee and the employee  reasonably
    49  believes  that  such  dismissal [or], other disciplinary action or other
    50  adverse action would not have been taken but for the  conduct  protected
    51  under  subdivision  two  of this section, he or she may assert such as a
    52  defense before the designated arbitrator or hearing officer. The  merits
    53  of  such defense shall be considered and determined as part of the arbi-
    54  tration award or hearing officer decision of the matter. If there  is  a
    55  finding  that the dismissal or other disciplinary action is based solely
    56  on a violation by the employer of such subdivision,  the  arbitrator  or
        A. 5757                             6
 
     1  hearing officer shall dismiss or recommend dismissal of the disciplinary
     2  proceeding,  as appropriate, and, if appropriate, reinstate the employee
     3  with back pay, and, in the case of an arbitration  procedure,  may  take
     4  other  appropriate action as is permitted in the collectively negotiated
     5  agreement.
     6    (b) Where an employee is subject to a collectively  negotiated  agree-
     7  ment  which  contains  provisions  preventing  an  employer  from taking
     8  adverse [personnel] actions and which contains a final and binding arbi-
     9  tration provision to resolve alleged violations of  such  provisions  of
    10  the agreement and the employee reasonably believes that such [personnel]
    11  action  would  not  have  been taken but for the conduct protected under
    12  subdivision two of this section, he or she may assert such  as  a  claim
    13  before  the  arbitrator.  The  arbitrator  shall consider such claim and
    14  determine its merits and shall, if a determination  is  made  that  such
    15  adverse  [personnel] ion is based on a violation by the employer of such
    16  subdivision, take such action to remedy the violation as is permitted by
    17  the collectively negotiated agreement.
    18    (c) [Where] In addition to or in lieu of the procedures set  forth  in
    19  paragraphs  (a) and (b) of this subdivision, or where an employee is not
    20  subject to any of the provisions of [paragraph (a) or (b) of this subdi-
    21  vision] such paragraphs, the employee may commence an action in a  court
    22  of  competent  jurisdiction  under the same terms and conditions and for
    23  the same relief as set forth in article twenty-C of the labor law.
    24    § 5. Section 75-b of the civil service law is amended by adding a  new
    25  subdivision 5 to read as follows:
    26    5.  Every public employer shall inform employees of their protections,
    27  rights and obligations under this section, by posting a notice  thereof.
    28  Such  notices  shall  be  posted  conspicuously in easily accessible and
    29  well-lighted places customarily frequented by employees  and  applicants
    30  for employment.
    31    §  6.  This  act shall take effect on the ninetieth day after it shall
    32  have become a law.