New York’s existing whistleblower protection law, which allows employees to sue their employers for whistleblower retaliation, has been significantly expanded. Changes go into effect on January 26, 2022.
The existing law protects employees who disclose, or threaten to disclose, to an employer or to public body “an activity, policy or practice of the employer that is in violation of law, rule or regulation” where such “violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” The existing law also protects employees who provide information to, or testify before, any public body conducting an investigation, hearing or inquiry in to any such activity, policy or practice as well as employees who object to, or refuse to participate in any such activity, policy or practice.
The new law expands the range of protected activity. Whereas the existing law protects only disclosures and other activity regarding actual violations of law that present a substantial and present danger to public health or safety, under the new law, employees will be protected for engaging in the same conduct about employer practices that they reasonably believe are in violation of a law, rule or regulation or that they reasonably believe pose a substantial and specific danger to public health or safety.
Other notable expansions to the law include:
- Expansion of the law’s definition of “employee” beyond just current employees to include former employees and independent contractors.
- Expansion of the law’s definition of “prohibited retaliatory action” to include actions or threats to take actions that would adversely impact a former employee’s current or future employment, and contacting or threatening to contact immigration authorities on an employee or the employee’s family or household member.
- Expansion of the law’s definition of “law, rule or regulation” to include executive orders as well as any judicial or administrative decisions, rulings or orders.
- Expansion of the law’s definition of “public body” to include any federal, state or local department of an executive branch of government and any division, board, bureau, office, committee, or commission of any public body.
- Increasing the statute of limitations to file a whistleblower retaliation claim from one year to two years after the retaliatory action was taken.
- Providing whistleblowers a right to a jury trial.
- Providing whistleblowers with enhanced remedies such as front pay (in lieu of reinstatement), civil penalties up to $10,000, and punitive damages (the existing law provides for reinstatement, back pay, and payment by the employer of the employee’s reasonable costs, disbursements and attorney’s fees).
- Requiring employers to notify employees of their rights under the whistleblower law by posting a notice (available here) in a conspicuous place.
The existing law requires employees to first report violations to their employer before disclosing violations to a public body, so as to allow employers a reasonable opportunity to correct the violation. Under the new law, employees need only make a “good faith effort” to notify their employer. Employer notification is not required and an employee may report directly to a public body, where:
- there is an imminent and serious danger to public health and safety;
- the employee reasonably believes that reporting would result in the destruction of evidence or other concealment of the activity, policy or practice;
- such activity, policy or practice could reasonably be expected to lead to endangering the welfare of a minor;
- the employee reasonably believes that reporting would result in physical harm to themselves or someone else; or
- the employee reasonably believes that their employer is already aware of the activity, policy or practice and will not correct it.