Workplace retaliation generally occurs when an employer punishes their employee for reporting a violation of labor law or other unsafe conduct, either to a supervisor or to a relevant government agency. As the New York State Department of Labor describes on its website, retaliation can take many forms. For example, an employee could be retaliated against after reporting illegal discrimination: by being fired; by having their wages or hours reduced; by being assigned to less favorable shifts; by being subject to intense supervision that is not standard for employees at the workplace; or by being demoted or passed up for a promotion that the employee otherwise deserved.
New York’s retaliation law is codified as New York Labor Law (NYLL) section 740. Until recently, this law defined retaliation very narrowly, making it difficult for employees to succeed in their claims. Employees could essentially only plead retaliation where they reported an actual violation of law—which created a substantial and specific danger to the public health and safety—to their supervisor or a public body and their employer punished the employee in some way for that reporting.
On October 28, 2021, Governor Kathy Hochul signed into law an amendment to New York’s retaliation law. This amendment takes effect on January 26, 2022, and expands the current language of the statute to protect additional categories of employees over a broader range of activities. This blog details the new protections employees gain from the amended law and compares them to the protections of the outgoing statute.
The new amendment broadens the scope of the original retaliation law in several keyways. It protects more than just employees; it protects an increased number of employees activities from retaliatory action and it appears that it will likely accommodate more lawsuits than the previous statute did. Let’s look at the newly added protections.
Expanded Categories of Employee
The new amendment broadens the definition of who can bring a retaliation claim under the law. Previously, the law strictly applied only to employees, which were defined as “individuals performing services for and under the control and direction of an employer for wages or other remuneration.” The amendment has expanded that definition with two new categories of employee—specifically, former employees and independent contractors.
This means that former employees who are retaliated against for raising complaints about an employer practice after their earlier, unrelated termination will be able to bring retaliation suits under the language in the new amendment. Similarly, independent contractors, who employers could previously freely terminate for raising conduct complaints on the job, will now be protected and able to bring retaliation claims against their contracting employers.
A Broadened Scope
Additionally, the new amendment extends retaliation protection to more employee conduct. The previous law only protected employees from retaliation if the employee acted within the scope of their duties as an employee. The law as amended will cover complaints and concerns raised by employees “whether or not within the scope of the employee’s job duties.” This language appears to extend retaliation protections to employees blowing the whistle on labor violations in outside departments or directed at other employees; notably, the statute does not define “scope of the employee’s job duties,” so the exact contours of that provision will be up to the courts to fill in.
An Increase in Protected Conduct
The most significant amendment to the labor law, however, is the expansion of the law’s prohibition section—that is, what kind of reporting by employees is actually protected under the law. The current retaliation law requires employees to demonstrate the exact violation of a law or rule which posed a substantial or specific danger to public health or safety.
Retaliation claims under the new amendment will hinge on whether or not the reporting employee had a reasonable belief that there was a violation of a law, rule or regulation. This amendment aligns New York law more closely with the ‘good faith reasonable belief’ language used under federal law, both for purposes of Equal Employment Opportunity Commission (“EEOC”) complaints and federal retaliation lawsuits. The amendment further broadens the definition of “law, rule or regulation” to extend to any federal, state or local statute, ordinance or executive order, any rule or regulation arising under a statute or any judicial or administrative decision. Previously, that definition was limited to duly enacted statutes or ordinances or related regulations.
Soon, an employee will only need to reasonably believe that they are reporting on conduct that poses a threat to the public health or safety or conduct that violates any law, rule, regulation, local ordinance, or administrative decision. As long as an employee’s belief is reasonable (and note, the law does not define what beliefs are considered reasonable), employees will now be able to anchor retaliation claims to a much broader set of laws and rules.
Notice and Publication
The new amendment retains the previous requirement that the employee needs to notify their employer before reporting a violation to a supervisor or a public body, but this requirement has also been softened. Once the amendment takes effect, employees will only need to make good faith efforts to notify their supervisor of the conduct they intend to report, and then afford the employer reasonable opportunity to correct the reported conduct. This explicitly bakes into the law an opportunity for the employer to properly address the conduct and the employee’s claims prior to initiating a formal external investigation or other administrative process.
Notably, the amended statute adds exceptions to this notice requirement. Reporting employees will not need to report their conduct if: there is serious and imminent danger to the public health or safety; the employee reasonably believes that reporting to the supervisor would result in the destruction of evidence or concealment of violative conduct; the reported activity could endanger the welfare of a minor; the employee reasonably believes that reporting to the supervisor could result in physical harm to the employee or another person; or the employee reasonably believes that the supervisor is already aware of the conduct and will not correct it.
The amendment also includes a publication requirement on behalf of the employer, similar to the publication requirements of New York’s wage and hour law. Employers will be required to inform their employees of their rights under the new law by posting a notice in an obvious, well-trafficked location in the workplace for employees to review.
Finally, the amendment also lengthens the previous statute of limitations for New York state retaliation claims from one year to two years, granting effected employees more time to bring their claims if they experience retaliation.
Given this amendment’s expansive language, it is logical that New York will see more retaliation cases as a result. Courts in California and New Jersey, for example, each have retaliation statutes with “reasonable belief” standards and courts in both states see a great deal of retaliation claims. Exactly how broad this statute will be in New York, however, remains to be seen. It will be up to the New York judiciary to determine what the practical boundaries of this new statute are once plaintiffs begin filing suit under it.
Take New Jersey’s retaliation statute (the Conscientious Employee Protection Act, or “CEPA”) as an example. In 2003, the New Jersey Supreme Court clarified the specific elements a plaintiff needed to establish to bring a retaliation claim under New Jersey’s CEPA in the case Dzwonar v. McDevitt, 177 N.J. 451 (N.J. 2003). In addition to establishing the elements of the claim, the Dzwonar court further held that trial courts “must identify a statute, regulation, rule or public policy that closely relates to the complained-of conduct” or otherwise, these cases should be dismissed.
Courts in New York will likely need to read in elements of a retaliation claim under the amended NYLL section 740 in a manner similar to the Dzwonar court in New Jersey. While state labor laws have shifted to being more employee-friendly in recent years, New York is traditionally a strong ‘at-will’ employment state, which generally creates the presumption that employees can be fired for any reason or no reason at all (so long as those reasons are not discriminatory or otherwise unlawful). It remains to be seen exactly how New York’s courts will interpret the new amendment—in light of its history of favoring at-will employment policies, New York may well take a more restrictive approach than the New Jersey supreme court did in Dzwonar.
There are more outstanding questions surrounding the language of the new amendment which courts will need to decide. For example, where the amendment protects reporting employees “whether or not they act within the scope of their duties,” does that mean that employees can be protected from retaliation for lodging complaints for conduct that occurs in other departments, or lodging complaints for conduct occurring on their day off? Similarly, what specifically constitutes a “good faith effort” to notify the employer of their disclosure? The legislature left these terms undefined in the law, meaning that it will be up to courts to determine.
Both employers and employees should keep their eyes on new developments in the law as this statute takes effect to understand the new rules surrounding workplace retaliation.
Employees that may be retaliated against by their employers should be aware of two things. First, that the amended statute will protect more employees and protect a wider scope of whistleblowing activity and second, that while the retaliation landscape has broadened, there is still a good deal of uncertainty about how the statute will be interpreted and applied.
Similarly, employers would be wise to anticipate the expansive nature of the new retaliation laws and revise their policy for processing and responding to employee complaints. Specifically, employers should expect a greater frequency of complaints and claims, have a robust complaint investigation process in place and a similarly robust record-keeping system to document the steps taken to investigate employee complaints. Employers should also consider implementing whistleblower complaint training policies for their managers and supervisors, so their managerial staff is prepared to handle these complaints properly.
Both employees that believe that they have experienced retaliation and employers handling employee complaints should consult experienced employment counsel to assess their positions and better understand their rights and responsibilities.