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A05696 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
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: This bill provides greater protections for "whistleblower" employees who disclose information about illegal activities of their employers.   SUMMARY OF 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 RILL 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 illegal activity to a public body, if the illegal activity presents a "substantial and specif- ic 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 illegal or improper activities by their employers are given certain Protections under New York's whistleblower protection law. Unfortunately, there are several weaknesses in the current whistleblower law. These weaknesses greatly limit the protections provided to employ- ees. Further, it deters honest employees from revealing illegal activ- ities 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 Whistleblower 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 employers 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.   LEGISLATIVE HISTORY: Similar to Attorney General departmental bills 2007 (A.3487); 2004 legislative session (A.8794), and a similar bill was submitted during the 2001-2002 legislative session. This bill is similar to S.5737/A.7144A (Klein/Benedetto), which passed the Assembly and Senate, but was vetoed by Governor Paterson.   FISCAL IMPLICATIONS: This bill is fiscally neutral.   EFFECTIVE DATE: This act shall take effect 90 days after it shall have become a law.
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