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December 20, 2019 | From the blogLitigation

Employee Whistleblower Claims in New York

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New York Law protects “whistleblowers” who report illegal conduct by employers. There have been employee whistleblower claims made in New York. This law is meant to encourage public and private employees to speak up when they witness their employers engaging in unlawful activity. Employers cannot retaliate against such employees or employee whistleblowers.  If they do, employees may have a claim, potentially resulting in significant liability for the employer.

New York Laws

New York has a few whistleblower laws which separately protect general employees, healthcare workers, and public employees.  Under New York Labor Law §740, an employer cannot discharge, suspend, demote or take any other adverse action against an employee who engages in any of the following protected activities:

  • disclosing, or threatening to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of a law, rule or regulation, which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud;
  • providing information to, or testifying before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by an employer; or
  • objecting to, or refusing to participate in any such activity, policy or practice in violation of a law, rule or regulation.

In the case of subsection (a), however, the employee must first bring the employer’s unlawful conduct to the attention of a supervisor and must afford the employer a reasonable opportunity to correct the unlawful conduct.

With respect to health care workers, the law is similar to a few additional provisions.  New York Labor Law § 741 seeks to prevent retaliation by an employer if the health care employee:

  • discloses or threatens to disclose to a supervisor, or to a public body, an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or
  • objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.

However, the employee must first disclose the perceived improper quality of patient care to their supervisor and afford the employer a reasonable opportunity to correct such activity – unless the improper quality of patient care presents an imminent threat to public health or safety or to the health of a specific patient, and the employee reasonably believes in good faith that reporting to a supervisor would not result in corrective action.

Note that § 740 requires the employee to disclose an actual violation of the law, while § 741 indicates that good faith, reasonable belief that a violation occurred is sufficient.

New York Civil Servant Law § 75-b protects public employees who report information, which they reasonably believe to be true regarding a violation of law, rule or regulation which creates a substantial and specific danger to public health and safety.  Employee whistleblower claims in New York are not uncommon. First, the employee must make a good faith effort to provide to his or her employer the information to be disclosed and give the employer a reasonable time to correct the activity unless there is an imminent and serious danger to public health and safety.

Any employee who suffers retaliatory action can bring a civil action and potentially be awarded:

  • injunctive relief
  • reinstatement of their position
  • reinstatement of full fringe benefits and seniority rights
  • lost wages and other benefits
  • payment of reasonable costs, disbursements, and attorney’s fees

Notably, courts also have the discretion to award relief to an employer for reasonable attorneys’ fees and court costs where it is found that the employee’s claim is without basis.

Other State and Federal Laws

Whistleblower protections exist under several federal laws including the Sarbanes-Oxley Act and Occupational Safety and Health (OSH) Act.  These laws prevent retaliation against employees reporting violations that involve unsafe or unhealthy working conditions, commercial motor vehicle safety or security, environmental concerns, consumer product safety or corporate fraud.  

The False Claims Act further protects current or former employees from retaliation for reporting false claims made by their employer for government payments.  Similarly, most states have whistleblower protection laws, but they vary in worker protections and the remedies available.

Protecting Your Rights

If you are an employee in New York and your employer has engaged in illegal activities or practices, it is important to document your employee whistleblower claims in New York.  To the best of your ability, you should keep detailed records of any misconduct as well as retaliatory actions against you.

Similarly, employers should maintain all records of employee complaints and any action taken by the employer to investigate and correct alleged misconduct.  Furthermore, if any adverse action is taken against an employee who previously made a complaint, care must be taken that there is a well-documented, independent reason for such action.

It should be noted that several amendments to New York’s whistleblower law were proposed in 2019. These provisions, if enacted, will generally be more protective of employees than the existing laws.  If you are considering a whistleblower suit or defending one, consult an experienced attorney about your claim.

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The experienced attorneys at Romano Law are ready to help. Contact us at 212-865-9848 or complete this form to speak to a member of our team!

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