Enacts provisions providing protection to employees from retaliatory actions by employers where such employees report improper business activities; applicable to employees who in good faith reasonably believe that an improper business activity has or will occur, based on information that the employees reasonably believe to be true; provides remedies and relief.
STATE OF NEW YORK
________________________________________________________________________
3603
2023-2024 Regular Sessions
IN ASSEMBLY
February 3, 2023
___________
Introduced by M. of A. PRETLOW -- 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. Section 740 of the labor law, as amended by chapter 522 of
2 the laws of 2021, is amended to read as follows:
3 § 740. Retaliatory action by employers; prohibition. 1. Definitions.
4 For purposes of this section, unless the context specifically indicates
5 otherwise:
6 (a) "Employee" means an individual who performs services for and under
7 the control and direction of an employer for wages or other remunera-
8 tion, including former employees, or natural persons employed as inde-
9 pendent contractors to carry out work in furtherance of an employer's
10 business enterprise who are not themselves employers.
11 (b) "Employer" means any person, firm, partnership, institution,
12 corporation, or association that employs one or more employees.
13 (c) "Law, rule or regulation" includes: (i) any duly enacted federal,
14 state or local statute or ordinance or executive order; (ii) any rule or
15 regulation promulgated pursuant to such statute or ordinance or execu-
16 tive order; [or] (iii) any internal rule promulgated by the employer
17 pursuant to any statute or ordinance; or (iv) any judicial or adminis-
18 trative decision, ruling or order.
19 (d) "Public body" includes the following:
20 (i) the United States Congress, any state legislature, or any elected
21 local governmental body, or any member or employee thereof;
22 (ii) any federal, state, or local court, or any member or employee
23 thereof, or any grand or petit jury;
24 (iii) any federal, state, or local regulatory, administrative, or
25 public agency or authority, or instrumentality thereof;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08368-01-3
A. 3603 2
1 (iv) any federal, state, or local law enforcement agency, prosecutori-
2 al office, or police or peace officer;
3 (v) any federal, state or local department of an executive branch of
4 government; or
5 (vi) any division, board, bureau, office, committee, or commission of
6 any of the public bodies described in subparagraphs (i) through (v) of
7 this paragraph.
8 (e) "Retaliatory action" means an adverse action taken by an employer
9 or his or her agent to discharge, threaten, penalize, or in any other
10 manner discriminate against any employee or former employee exercising
11 his or her rights under this section, including (i) adverse employment
12 actions or threats to take such adverse employment actions against an
13 employee in the terms of conditions of employment including but not
14 limited to discharge, suspension, or demotion; (ii) actions or threats
15 to take such actions that would adversely impact a former employee's
16 current or future employment; or (iii) threatening to contact or
17 contacting United States immigration authorities or otherwise reporting
18 or threatening to report an employee's suspected citizenship or immi-
19 gration status or the suspected citizenship or immigration status of an
20 employee's family or household member, as defined in subdivision two of
21 section four hundred fifty-nine-a of the social services law, to a
22 federal, state, or local agency.
23 (f) "Supervisor" means any individual within an employer's organiza-
24 tion who has the authority to direct and control the work performance of
25 [the affected] an employee; or who has [managerial] authority to take
26 corrective action regarding the [violation of the law, rule or regu-
27 lation] improper business activity of which the employee complains.
28 (g) "Agent" means any individual, partnership, association, corpo-
29 ration or group of persons acting on behalf of an employer.
30 (h) "Improper business activity" means any practice, procedure, action
31 or failure to act by an employer, or an employee or agent of such
32 employer, taken in the course of the employer's business, whether or not
33 within the scope of employment or agency, which is in violation of any
34 law, rule or regulation.
35 2. Prohibitions. An employer shall not take any retaliatory action
36 against an employee, whether or not within the scope of the employee's
37 job duties, because such employee does any of the following:
38 (a) discloses, or threatens to disclose to a supervisor [or to a],
39 agent, internal agency, or to the public [body] information about an
40 improper business activity[, policy or practice of the employer that the
41 employee reasonably believes is in violation of law, rule or regulation
42 or that the employee reasonably believes poses a substantial and specif-
43 ic danger to the public health or safety];
44 (b) provides information to, or testifies before, any public body
45 conducting an investigation, hearing or inquiry into any such [activity,
46 policy or practice by such employer] improper business activity; or
47 (c) objects to, or refuses to participate in any [such] improper busi-
48 ness activity[, policy or practice].
49 3. Application. The protection against retaliatory action provided by
50 [paragraph (a) of subdivision two of this section pertaining to disclo-
51 sure to a public body shall not apply to an employee who makes such
52 disclosure to a public body unless the employee has made a good faith
53 effort to notify his or her employer by bringing the activity, policy or
54 practice 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. Such employer notification shall not be
A. 3603 3
1 required where: (a) there is an imminent and serious danger to the
2 public health or safety; (b) the employee reasonably believes that
3 reporting to the supervisor would result in a destruction of evidence or
4 other concealment of the activity, policy or practice; (c) such activ-
5 ity, policy or practice could reasonably be expected to lead to endan-
6 gering the welfare of a minor; (d) the employee reasonably believes that
7 reporting to the supervisor would result in physical harm to the employ-
8 ee or any other person; or (e) the employee reasonably believes that the
9 supervisor is already aware of the activity, policy or practice and will
10 not correct such activity, policy or practice] subdivision two of this
11 section shall apply to any employee who in good faith reasonably
12 believes that an improper business activity has occurred or will occur,
13 based on information that the employee in good faith reasonably believes
14 to be true.
15 4. Violation; remedy. (a) An employee who has been the subject of a
16 retaliatory action in violation of this section may institute a civil
17 action in a court of competent jurisdiction for relief as set forth in
18 subdivision five of this section within two years after the alleged
19 retaliatory action was taken.
20 (b) Any action authorized by this section may be brought in the county
21 in which the alleged retaliatory action occurred, in the county in which
22 the complainant resides, or in the county in which the employer has its
23 principal place of business. In any such action, the parties shall be
24 entitled to a jury trial.
25 (c) It shall be a defense to any action brought pursuant to this
26 section that the retaliatory action was predicated upon grounds other
27 than the employee's exercise of any rights protected by this section.
28 5. Relief. In any action brought pursuant to subdivision four of this
29 section, the court may order relief as follows:
30 (a) [an injunction to restrain continued violation of this section;
31 (b)] the reinstatement of the employee to the same position held
32 before the retaliatory action, or to an equivalent position, or front
33 pay in lieu thereof;
34 [(c)] (b) the reinstatement of full fringe benefits and seniority
35 rights;
36 [(d)] (c) the compensation for lost wages, benefits and other remuner-
37 ation;
38 [(e)] (d) compensatory damages for economic loss;
39 (e) the payment by the employer of reasonable costs, disbursements,
40 and attorney's fees;
41 (f) an injunction to restrain the employer's continued violation of
42 this section with respect to the employee;
43 (g) a civil penalty of an amount not to exceed [ten] thirty thousand
44 dollars if the court, in its discretion, finds that the employer acted
45 in bad faith in the retaliatory action; and/or
46 [(g)] (h) the payment by the employer of punitive damages, if the
47 violation was willful, malicious or wanton.
48 6. [Employer relief. A court, in its discretion, may also order that
49 reasonable attorneys' fees and court costs and disbursements be awarded
50 to an employer if the court determines that an action brought by an
51 employee under this section was without basis in law or in fact.
52 7.] Existing rights. Nothing in this section shall be deemed to dimin-
53 ish the rights, privileges, or remedies of any employee under any other
54 law or regulation or under any collective bargaining agreement or
55 employment contract.
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1 [8.] 7. Publication. Every employer shall inform employees of their
2 protections, rights and obligations under this section, by posting a
3 notice thereof. Such notices shall be posted conspicuously in easily
4 accessible and well-lighted places customarily frequented by employees
5 and applicants for employment.
6 § 2. Section 741 of the labor law, as added by chapter 24 of the laws
7 of 2002, subdivisions 1, 2 and 3 as amended by chapter 117 of the laws
8 of 2020, subdivision 4 as amended and subdivision 6 as added by chapter
9 522 of the laws of 2021, is amended to read as follows:
10 § 741. Prohibition; health care employer who penalizes employees
11 because of complaints of employer violations. 1. Definitions. As used
12 in this section, the following terms shall have the following meanings:
13 (a) "Employee" means any person who performs health care services for
14 and under the control and direction of any public or private employer
15 which provides health care services for wages or other remuneration.
16 (b) "Employer" means any partnership, association, corporation, the
17 state, or any political subdivision of the state which: (i) provides
18 health care services in a facility licensed pursuant to article twenty-
19 eight or thirty-six of the public health law; (ii) provides health care
20 services within a primary or secondary public or private school or
21 public or private university setting; (iii) operates and provides health
22 care services under the mental hygiene law or the correction law; or
23 (iv) is registered with the department of education pursuant to section
24 sixty-eight hundred eight of the education law.
25 (c) "Agent" means any individual, partnership, association, corpo-
26 ration, or group of persons acting on behalf of an employer.
27 (d) "Improper quality of patient care" means, with respect to patient
28 care, any practice, procedure, action or failure to act of an employer
29 which violates any law, rule, regulation or declaratory ruling adopted
30 pursuant to law, where such violation relates to matters which may pres-
31 ent a substantial and specific danger to public health or safety or a
32 significant threat to the health of a specific patient.
33 (e) "Improper quality of workplace safety" means, with respect to
34 employees, any practice, procedure, action or failure to act of an
35 employer which violates any law, rule, regulation, or declaratory ruling
36 adopted pursuant to law where such violation relates to matters which
37 may present an unsafe workplace environment or risk of employee safety
38 or a significant threat to the health of a specific employee.
39 (f) "Public body" means:
40 (1) the United States Congress, any state legislature, or any elected
41 local governmental body, or any member or employee thereof;
42 (2) any federal, state or local court, or any member or employee ther-
43 eof, any grand or petit jury;
44 (3) any federal, state or local regulatory, administrative or public
45 agency or authority, or instrumentality thereof;
46 (4) any federal, state or local law enforcement agency, prosecutorial
47 office, or police or peace officer;
48 (5) any federal, state or local department of an executive branch of
49 government; or
50 (6) any division, board, bureau, office, committee or commission of
51 any of the public bodies described in subparagraph one, two, three, four
52 or five of this paragraph.
53 (g) "Retaliatory action" means the discharge, suspension, demotion,
54 penalization or discrimination against an employee, or [other adverse
55 employment action] taken any act of reprisal against an employee [in the
56 terms and conditions of employment].
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1 (h) "Supervisor" means any person within an employer's organization
2 who has the authority to direct and control the work performance of an
3 employee, or who has the authority to take corrective action regarding
4 the violation of a law, rule or regulation to which an employee submits
5 a complaint.
6 (i) "Law, rule or regulation" includes:
7 (1) any duly enacted federal, state or local statute or ordinance;
8 (2) any rule or regulation promulgated pursuant to any statute or
9 ordinance;
10 (3) any internal rule promulgated by the employer pursuant to any
11 statute or ordinance; or
12 (4) any judicial or administrative decision, ruling or order.
13 2. Retaliatory action prohibited. Notwithstanding any other provision
14 of law, no employer shall take retaliatory action against any employee
15 because the employee does any of the following:
16 (a) discloses or threatens to disclose to a supervisor, agent or to a
17 public body, to a news media outlet, or to a social media forum avail-
18 able to the public at large, an activity, policy or practice of the
19 employer or agent that the employee, in good faith, reasonably believes
20 constitutes improper quality of patient care or improper quality of
21 workplace safety; [or]
22 (b) objects to, or refuses to participate in any activity, policy or
23 practice of the employer or agent that the employee, in good faith,
24 reasonably believes constitutes improper quality of patient care or
25 improper quality of workplace safety[.]; or
26 (c) provides information to, or testifies before, any public body
27 conducting an investigation, hearing or inquiry into any violation or
28 action described in subparagraph (i) of paragraph (a) of subdivision two
29 of section seventy-five-b of the civil service law.
30 3. [Application. The protection against retaliatory personnel action
31 provided by subdivision two of this section shall not apply unless the
32 employee has brought the improper quality of patient care or improper
33 quality of workplace safety to the attention of a supervisor and has
34 afforded the employer a reasonable opportunity to correct such activity,
35 policy or practice. This subdivision shall not apply to an action or
36 failure to act described in paragraph (a) of subdivision two of this
37 section where the improper quality of patient care or improper quality
38 of workplace safety described therein presents an imminent threat to
39 public health or safety or to the health of a specific patient or
40 specific health care employee and the employee reasonably believes in
41 good faith that reporting to a supervisor would not result in corrective
42 action.
43 4. Enforcement. A health care employee may seek enforcement of this
44 section pursuant to subdivisions four and five of section seven hundred
45 forty of this article.
46 5.] Relief. In any court action brought pursuant to this section it
47 shall be a defense that the personnel action was predicated upon grounds
48 other than the employee's exercise of any rights protected by this
49 section.
50 [6.] 4. Publication. Every employer shall inform employees of their
51 protections, rights and obligations under this section by posting a
52 notice thereof. Such notices shall be posted conspicuously in easily
53 accessible and well-lighted places customarily frequented by employees
54 and applicants for employment.
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1 § 3. Subdivision 2 of section 75-b of the civil service law, as added
2 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
3 ter 899 of the laws of 1986, is amended to read as follows:
4 2. (a) A public employer shall not dismiss, suspend, demote, penalize
5 or discriminate against, or take other disciplinary or other [adverse
6 personnel action] act of reprisal against a public employee regarding
7 the employee's employment because the employee:
8 (i) discloses or threatens to disclose to a supervisor, governmental
9 body [information:(i) regarding a violation of a law, rule or regulation
10 which violation creates and presents a substantial and specific danger
11 to the public health or safety; or (ii) which the employee reasonably
12 believes to be true and reasonably believes], agency or to the public
13 any conduct which constitutes an improper governmental action. ["Improp-
14 er governmental action" shall mean any action by a public employer or
15 employee, or an agent of such employer or employee, which is undertaken
16 in the performance of such agent's official duties, whether or not such
17 action is within the scope of his employment, and which is in violation
18 of any federal, state or local law, rule or regulation.]
19 (ii) provides information to, or testifies before, any public body
20 conducting an investigation, hearing or inquiry into any improper
21 governmental action; or
22 (iii) objects to, or refuses to participate in, any improper govern-
23 mental action.
24 The protection against retaliatory personnel action provided in para-
25 graph (a) of this subdivision shall apply to any employee who in good
26 faith reasonably believes that a violation or improper governmental
27 action has occurred or will occur, based on information that the employ-
28 ee in good faith reasonably believes to be true.
29 (b)(i) "Improper governmental action" shall mean any practice, proce-
30 dure, action or failure to act by a public employer or employee, or an
31 agent of such employer or employee, whether or not such action is within
32 the scope of such person's employment, which is in violation of any law,
33 rule or regulation.
34 (ii) "Law, rule or regulation" includes: (A) any duly enacted federal,
35 state or local statute or ordinance; (B) any rule or regulation promul-
36 gated pursuant to any such statute or ordinance; or (C) any judicial or
37 administrative decision, ruling or order.
38 § 4. Paragraph (c) of subdivision 3 of section 75-b of the civil
39 service law, as added by chapter 660 of the laws of 1984, is amended to
40 read as follows:
41 (c) [Where] In addition to or in lieu of the procedures set forth in
42 paragraphs (a) and (b) of this subdivision, or where an employee is not
43 subject to any of the provisions of [paragraph (a) or (b) of this subdi-
44 vision] such paragraphs, the employee may commence an action in a court
45 of competent jurisdiction under the same terms and conditions and for
46 the same relief as set forth in article twenty-C of the labor law.
47 § 5. Section 75-b of the civil service law is amended by adding a new
48 subdivision 5 to read as follows:
49 5. Every public employer shall inform employees of their protections,
50 rights and obligations under this section, by posting a notice thereof.
51 Such notices shall be posted conspicuously in easily accessible and
52 highly visible areas frequently visited by employees and applicants for
53 employment.
54 § 6. This act shall take effect on the ninetieth day after it shall
55 have become a law.
