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A02024 Summary:

BILL NOA02024
 
SAME ASNo same as
 
SPONSORLancman
 
COSPNSRLupardo, Clark, Rivera P, Rivera N, Stevenson, Gibson, Jaffee, Schroeder, Colton, Weprin
 
MLTSPNSRArroyo, Destito, McEneny
 
Amd S740, Lab L; amd S75-b, Civ Serv L
 
Enacts provisions providing protection to employees from retaliatory actions by employers where such employees report illegal business activities; applicable to employees who in good faith reasonably believes that an illegal business activity has or will occur, based on information that the employee reasonably believes to be true; provides remedies and relief.
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A02024 Actions:

BILL NOA02024
 
01/13/2011referred to labor
03/23/2011enacting clause stricken
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A02024 Floor Votes:

There are no votes for this bill in this legislative session.
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A02024 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2024
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2011
                                       ___________
 
        Introduced  by M. of A. LANCMAN -- read once and referred to the Commit-
          tee 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. This act shall be known and may be cited as  the  "whistle-
     2  blower protection act".
     3    § 2. Section 740 of the labor law, as added by chapter 660 of the laws
     4  of  1984,  paragraph  (g) of subdivision 1 as added and paragraph (a) of
     5  subdivision 2 as amended by chapter 442 of the laws of  2006  and  para-
     6  graph  (d)  of subdivision 4 as added by chapter 24 of the laws of 2002,
     7  is amended to read as follows:
     8    § 740. Retaliatory personnel  action  by  employers;  prohibition.  1.
     9  Definitions.  For  purposes  of this section, unless the context specif-
    10  ically indicates otherwise:
    11    (a) "Employee" means an individual who performs services for and under
    12  the control and direction of an employer for wages  or  other  remunera-
    13  tion.
    14    (b)  "Employer"  means  any  person,  firm,  partnership, institution,

    15  corporation, or association that employs one or more employees.
    16    (c) "Law, rule or regulation" includes: (i) any duly enacted  federal,
    17  state  or  local  statute or ordinance [or]; (ii) any rule or regulation
    18  promulgated pursuant to [any federal, state or local]  such  statute  or
    19  ordinance;  or  (iii) any judicial or administrative decision, ruling or
    20  order.
    21    (d) "Public body" includes the following:
    22    (i) the United States Congress, any state legislature, or  any  [popu-
    23  larly-elected] elected local governmental body, or any member or employ-
    24  ee thereof;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

                                                                   LBD04117-01-1

        A. 2024                             2
 
     1    (ii)  any federal, state, or local [judiciary] court, or any member or
     2  employee thereof, or any grand or petit jury;
     3    (iii)  any  federal,  state,  or  local regulatory, administrative, or
     4  public agency or authority, or instrumentality thereof; [or]
     5    (iv) any federal, state, or local law enforcement agency, prosecutori-
     6  al office, or police or peace officer;
     7    (v) any federal, state or local department of an executive  branch  of
     8  government; or
     9    (vi)  any division, board, bureau, office, committee, or commission of
    10  any of the public bodies described in subparagraphs (i) through  (v)  of
    11  this paragraph.

    12    (e) "Retaliatory personnel action" means the discharge, suspension [or
    13  demotion  of],  demotion,  penalization  or  discrimination  against  an
    14  employee, or other adverse employment action taken against  an  employee
    15  in the terms and conditions of employment.
    16    (f)  "Supervisor"  means any individual within an employer's organiza-
    17  tion who has the authority to direct and control the work performance of
    18  [the affected] an employee; or who has [managerial]  authority  to  take
    19  corrective  action  regarding  the  [violation of the law, rule or regu-
    20  lation] illegal business activity of which the employee complains.
    21    (g) "Health care fraud" means health care fraud as defined by  article
    22  one hundred seventy-seven of the penal law.

    23    (h)  "Agent"  means  any  individual, partnership, association, corpo-
    24  ration or group of persons acting on behalf of an employer.
    25    (i) "Illegal business activity" means any practice, procedure,  action
    26  or  failure  to  act  by  an  employer,  or an employee or agent of such
    27  employer, taken in the course of the employer's business, whether or not
    28  within the scope of employment or agency, which is in violation  of  any
    29  law, rule or regulation.
    30    2.  Prohibitions. An employer shall not take any retaliatory personnel
    31  action against an employee because such employee does any of the follow-
    32  ing:
    33    (a) discloses, or threatens to disclose to a supervisor or to a public
    34  body information about an illegal business activity[, policy or practice

    35  of the employer that is in violation of law, rule  or  regulation  which
    36  violation  creates and presents a substantial and specific danger to the
    37  public health or safety, or which constitutes health care 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]  illegal business
    41  activity; or
    42    (c) objects to, or refuses to participate in any [such] illegal  busi-
    43  ness  activity[, policy or practice in violation of a law, rule or regu-
    44  lation].
    45    3. Application. The protection against  retaliatory  personnel  action

    46  provided  by subdivision two of this section shall apply to any employee
    47  who in good faith reasonably believes that an illegal business  activity
    48  has  occurred  or  will occur, based on information that the employee in
    49  good faith reasonably believes to be true; provided, however,  that  the
    50  protection  against  retaliatory  personnel action provided by paragraph
    51  (a) of subdivision two of this section pertaining  to  disclosure  to  a
    52  public  body shall not apply to an employee who makes such disclosure to
    53  a public body unless the employee has [brought] made a good faith effort
    54  to notify his or her employer by bringing the  illegal  business  activ-
    55  ity[, policy or practice in violation of law, rule or regulation] to the

    56  attention  of  a  supervisor  [of  the  employer]  and has afforded such

        A. 2024                             3
 
     1  employer a reasonable opportunity to correct such activity[,  policy  or
     2  practice].    Employer notification shall not be required where: (a) the
     3  employer has not complied with the publication requirements of  subdivi-
     4  sion  eight of this section; (b) there is an imminent and serious danger
     5  to the public health or safety; or (c) the employee reasonably  believes
     6  that  reporting  to  the  supervisor  would  result  in a destruction of
     7  evidence or other concealment of the illegal business activity.
     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] subdivision five of this section, the court, in  its  discretion,
    30  based upon a finding that the employer acted in bad faith in the retali-
    31  atory  action,  may assess the employer a civil penalty of an amount not

    32  to exceed ten thousand dollars, to be paid to the improving  quality  of
    33  patient  care fund, established pursuant to section ninety-seven-aaaa of
    34  the state 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
    39  before the retaliatory personnel action, or to an equivalent position;
    40    [(c)] (b) the reinstatement of  full  fringe  benefits  and  seniority
    41  rights;
    42    [(d)] (c) the compensation for lost wages, benefits and other remuner-
    43  ation; [and
    44    (e)] (d) compensatory damages for economic loss;

    45    (e)  the  payment  by the employer of reasonable costs, disbursements,
    46  and attorney's fees;
    47    (f) an injunction to restrain the employer's  continued  violation  of
    48  this section with respect to the employee; and
    49    (g)  a  civil penalty of an amount not to exceed ten thousand dollars,
    50  if the court, in its discretion, finds that the employer  acted  in  bad
    51  faith in the retaliatory action.
    52    6.  Employer  relief.  A court, in its discretion, may also order that
    53  reasonable attorneys' fees and court costs and disbursements be  awarded
    54  to  an  employer  if  the  court determines that an action brought by an
    55  employee under this section was without reasonable basis in  law  or  in
    56  fact.

        A. 2024                             4
 

     1    7.  Existing rights. Nothing in this section shall be deemed to dimin-
     2  ish the rights, privileges, or remedies of any employee under any  other
     3  law  or  regulation  or  under  any  collective  bargaining agreement or
     4  employment contract; except that the institution of an action in accord-
     5  ance  with this section shall be deemed a waiver of the rights and reme-
     6  dies available under any other contract,  collective  bargaining  agree-
     7  ment, law, rule or regulation or under the common law.
     8    8.  Publication.  Every  employer  shall  inform  employees  of  their
     9  protections, rights and obligations under this  section,  by  posting  a
    10  notice  thereof.    Such notices shall be posted conspicuously in easily
    11  accessible and well-lighted places customarily frequented  by  employees
    12  and applicants for employment.

    13    §  3. 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,  penalize
    17  or  discriminate  against,  or  take other disciplinary or other adverse
    18  personnel action against a  public  employee  regarding  the  employee's
    19  employment because the employee:
    20    (i)  discloses  or  threatens  to  disclose  to  a  governmental  body
    21  information[:(i)] regarding a violation of a  law,  rule  or  regulation
    22  which  violation  creates and presents a substantial and specific danger
    23  to the public health or safety[; or (ii) which the  employee  reasonably

    24  believes  to  be  true  and reasonably believes] or which constitutes an
    25  improper governmental action[. "Improper governmental action" shall mean
    26  any action by a public employer or employee, or an agent of such employ-
    27  er or employee, which is undertaken in the performance of  such  agent's
    28  official  duties,  whether or not such action is within the scope of his
    29  employment, and which is in violation of any  federal,  state  or  local
    30  law, rule or regulation.];
    31    (ii)  provides  information  to,  or testifies before, any public body
    32  conducting an investigation, hearing or inquiry into  any  violation  or
    33  action described in subparagraph (i) of this paragraph; or

    34    (iii)  objects to, or refuses to participate in, any such violation or
    35  action.
    36    (b) The protection against retaliatory personnel  action  provided  in
    37  paragraph  (a)  of  this  subdivision shall apply to any employee who in
    38  good faith reasonably believes that a violation or improper governmental
    39  action has occurred or will occur, based on information that the employ-
    40  ee in good faith reasonably believes to be true.
    41    (c) Prior  to  disclosing  information  pursuant  to  [paragraph  (a)]
    42  subparagraph (i) of paragraph (a) of this subdivision, an employee shall
    43  have made a good faith effort to provide the appointing authority or his
    44  or  her  designee  the information to be disclosed and shall provide the

    45  appointing authority or designee a reasonable time to  take  appropriate
    46  action  unless  there is imminent and serious danger to public health or
    47  safety. For the purposes of  this  subdivision,  an  employee  who  acts
    48  pursuant to this paragraph shall be deemed to have disclosed information
    49  to  a governmental body under paragraph (a) of this subdivision. Notifi-
    50  cation to the appointing authority or designee  shall  not  be  required
    51  where:  (i)  the  public  employer has not complied with the publication
    52  requirements of subdivision five of this section; (ii) there is an immi-
    53  nent and serious danger to the public health or  safety;  or  (iii)  the
    54  employee  reasonably believes that reporting to the appointing authority
    55  or designee would result in a destruction of evidence or other  conceal-

    56  ment of the illegal business activity.

        A. 2024                             5
 
     1    (d) "Improper governmental action" shall mean any practice, procedure,
     2  action  or  failure to act by a public employer or employee, or an agent
     3  of such employer or employee, which is undertaken in the performance  of
     4  such  agent's  official duties, whether or not such action is within the
     5  scope of such person's employment, and which is in violation of any law,
     6  rule  or  regulation.  "Law,  rule or regulation" includes: (i) any duly
     7  enacted federal, state or local statute or ordinance; (ii) any  rule  or
     8  regulation  promulgated  pursuant  to  any such statute or ordinance; or
     9  (iii) any judicial or administrative decision, ruling or order.

    10    § 4. Paragraph (c) of subdivision 3  of  section  75-b  of  the  civil
    11  service  law, as added by chapter 660 of the laws of 1984, is amended to
    12  read as follows:
    13    (c) [Where] In addition to or in lieu of the procedures set  forth  in
    14  paragraphs  (a) and (b) of this subdivision, or where an employee is not
    15  subject to any of the provisions of [paragraph (a) or (b) of this subdi-
    16  vision] such paragraphs, the employee may commence an action in a  court
    17  of  competent  jurisdiction  under the same terms and conditions and for
    18  the same relief as set forth in article twenty-C of the labor law.
    19    § 5. Section 75-b of the civil service law is amended by adding a  new
    20  subdivision 5 to read as follows:

    21    5.  Every public employer shall inform employees of their protections,
    22  rights and obligations under this section, by posting a notice  thereof.
    23  Such  notices  shall  be  posted  conspicuously in easily accessible and
    24  well-lighted places customarily frequented by employees  and  applicants
    25  for employment.
    26    §  6.  This  act shall take effect on the ninetieth day after it shall
    27  have become a law.
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