Bill Text: NY A05757 | 2017-2018 | General Assembly | Introduced
Bill Title: Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Engrossed - Dead) 2018-04-30 - REFERRED TO LABOR [A05757 Detail]
Download: New_York-2017-A05757-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5757 2017-2018 Regular Sessions IN ASSEMBLY February 15, 2017 ___________ Introduced by M. of A. BENEDETTO -- read once and referred to the Committee on Labor 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 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 added by chapter 660 of 2 the laws of 1984, paragraph (g) of subdivision 1 as added and paragraph 3 (a) of subdivision 2 as amended by chapter 442 of the laws of 2006, and 4 paragraph (d) of subdivision 4 as added by chapter 24 of the laws of 5 2002, is amended to read as follows: 6 § 740. Retaliatory [personnel] action by employers; prohibition. 1. 7 Definitions. For purposes of this section, unless the context specif- 8 ically indicates otherwise: 9 (a) "Employee" means an individual who performs services for and under 10 the control and direction of an employer for wages or other remunera- 11 tion. 12 (b) "Employer" means any person, firm, partnership, institution, 13 corporation, or association that employs one or more employees. 14 (c) "Law, rule or regulation" includes: (i) any duly enacted federal, 15 state or local statute or ordinance [or]; (ii) any rule or regulation 16 promulgated pursuant to [any federal, state or local] such statute or 17 ordinance; or (iii) any judicial or administrative decision, ruling or 18 order. 19 (d) "Public body" includes the following: 20 (i) the United States Congress, any state legislature, or any [popu-21larly-elected] elected local governmental body, or any member or employ- 22 ee thereof; 23 (ii) any federal, state, or local [judiciary] court, or any member or 24 employee thereof, or any grand or petit jury; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01270-01-7A. 5757 2 1 (iii) any federal, state, or local regulatory, administrative, or 2 public agency or authority, or instrumentality thereof; [or] 3 (iv) any federal, state, or local law enforcement agency, prosecutori- 4 al office, or police or peace officer; 5 (v) any federal, state or local department of an executive branch of 6 government; or 7 (vi) any division, board, bureau, office, committee, or commission of 8 any of the public bodies described in subparagraphs (i) through (v) of 9 this paragraph. 10 (e) "Retaliatory [personnel] action" means the discharge, suspension 11 [or demotion of], demotion, penalization or discrimination against an 12 employee or former employee, or other adverse [employment] action taken 13 against an employee or former employee [in the terms and conditions of14employment]. 15 (f) "Supervisor" means any individual within an employer's organiza- 16 tion who has the authority to direct and control the work performance of 17 [the affected] an employee; or who has [managerial] authority to take 18 corrective action regarding the [violation of the law, rule or regu-19lation] illegal business activity of which the employee complains. 20 (g) ["Health care fraud" means health care fraud as defined by article21one hundred seventy-seven of the penal law.] "Agent" means any individ- 22 ual, partnership, association, corporation or group of persons acting on 23 behalf of an employer. 24 (h) "Illegal business activity" means any practice, procedure, action 25 or failure to act by an employer, or an employee or agent of such 26 employer, taken in the course of the employer's business, whether or not 27 within the scope of employment or agency, that is in violation of any 28 law, rule or regulation punishable by imprisonment or civil or criminal 29 penalty. 30 2. Prohibitions. An employer shall not take any retaliatory [person-31nel] action against an employee or former employee because such employee 32 or former employee does any of the following while employed by the 33 employer, whether or not within the scope of the employee's job duties: 34 (a) discloses to a supervisor or a public body, or threatens to 35 [disclose] make a disclosure to a [supervisor or to a] public body 36 unless the employer remedies the illegal business activity, information 37 about an illegal business activity[, policy or practice of the employer38that is in violation of law, rule or regulation which violation creates39and presents a substantial and specific danger to the public health or40safety, or which constitutes health care fraud]; 41 (b) provides information to, or testifies before, any public body 42 conducting an investigation, hearing or inquiry into any such [violation43of a law, rule or regulation by such employer] illegal business 44 activity; or 45 (c) objects to, or refuses to participate in, any [such] illegal busi- 46 ness activity[, policy or practice in violation of a law, rule or regu-47lation]. 48 3. Application. The protection against retaliatory [personnel] action 49 provided by paragraphs (a), (b) and (c) of subdivision two of this 50 section shall apply to any employee who in good faith reasonably 51 believes that an illegal business activity has occurred or will occur, 52 based on information that the employee in good faith reasonably believes 53 to be true; provided however that the protection against retaliatory 54 action provided by paragraph (a) of subdivision two of this section 55 pertaining to disclosure to a public body shall not apply to an employee 56 who makes such disclosure to a public body unless the employee hasA. 5757 3 1 [brought] made a good faith effort to notify his or her employer by 2 bringing the illegal business activity[, policy or practice in violation3of law, rule or regulation] to the attention of a supervisor [of the4employer] and has afforded such employer a reasonable opportunity to 5 correct such activity[, policy or practice]. Such employer notification 6 shall not be required where: (a) the employer has not posted any notice 7 required by subdivision eight of this section; (b) there is an imminent 8 and serious danger to the public health or safety; (c) the employee 9 reasonably believes that reporting to the supervisor would result in a 10 destruction of evidence or other concealment of the illegal business 11 activity; (d) such activity could reasonably be expected to lead to 12 endangering the welfare of a minor; (e) the employee reasonably believes 13 that reporting to the supervisor would result in physical harm to the 14 employee or any other person; or (f) the employee reasonably believes 15 that the supervisor is already aware of the illegal business activity 16 and will not correct such activity. 17 4. Violation; remedy. (a) An employee who has been the subject of a 18 retaliatory [personnel] action in violation of this section may insti- 19 tute a civil action in a court of competent jurisdiction for relief as 20 set forth in subdivision five of this section within [one year] two 21 years after the alleged retaliatory [personnel] action was taken. 22 (b) Any action authorized by this section may be brought in the county 23 in which the alleged retaliatory [personnel] action occurred, in the 24 county in which the complainant resides, or in the county in which the 25 employer has its principal place of business. In any such action, the 26 parties shall be entitled to a jury trial. 27 (c) [It shall be a defense to any action brought pursuant to this28section that the personnel action was predicated upon grounds other than29the employee's exercise of any rights protected by this section.] Except 30 as otherwise provided in this section, a violation of this section is 31 established when the complainant demonstrates that a motivating factor 32 for the retaliatory action violates subdivision two of this section. 33 Remedies for violation of subdivision two of this section shall be 34 limited solely to those provided in paragraphs (e), (f) and (g) of 35 subdivision five of this section if the employer demonstrates that it 36 would have taken the same action in the absence of the impermissible 37 motivating factor. It shall [also] be a defense that the individual was 38 an independent contractor. 39 [(d) Notwithstanding the provisions of paragraphs (a) and (c) of this40subdivision, a health care employee who has been the subject of a retal-41iatory action by a health care employer in violation of section seven42hundred forty-one of this article may institute a civil action in a43court of competent jurisdiction for relief as set forth in subdivision44five of this section within two years after the alleged retaliatory45personnel action was taken. In addition to the relief set forth in that46subdivision, the court, in its discretion, based upon a finding that the47employer acted in bad faith in the retaliatory action, may assess the48employer a civil penalty of an amount not to exceed ten thousand49dollars, to be paid to the improving quality of patient care fund,50established pursuant to section ninety-seven-aaaa of the state finance51law.] 52 5. Relief. In any action brought pursuant to subdivision four of this 53 section, the court may order relief as follows: 54 (a) [an injunction to restrain continued violation of this section;A. 5757 4 1(b)] the reinstatement of the employee to the same position held 2 before the retaliatory [personnel] action[,] or to an equivalent posi- 3 tion, or front pay in lieu thereof; 4 [(c)] (b) the reinstatement of full fringe benefits and seniority 5 rights; 6 [(d)] (c) the compensation for lost wages, benefits and other remuner- 7 ation; [and8(e)] (d) compensatory damages for economic loss and for emotional 9 distress; 10 (e) the payment by the employer of reasonable costs, disbursements, 11 and attorney's fees; 12 (f) an injunction to restrain the employer's continued violation of 13 this section; and 14 (g) a civil penalty of an amount not to exceed ten thousand dollars 15 and/or a liquidated damages award equal to amounts of damages pursuant 16 to paragraphs (c) and (d) of this subdivision, if the court, in its 17 discretion, finds that the employer acted in bad faith in the retaliato- 18 ry action. 19 6. Employer relief. A court, in its discretion, may also order that 20 reasonable attorneys' fees and court costs and disbursements be awarded 21 to an employer if the court determines that an action brought by an 22 employee under this section was without basis in law or in fact. 23 7. Existing rights. Nothing in this section shall be deemed to dimin- 24 ish the rights, privileges, or remedies of any employee under any other 25 law or regulation or under any collective bargaining agreement or 26 employment contract[; except that the institution of an action in27accordance with this section shall be deemed a waiver of the rights and28remedies available under any other contract, collective bargaining29agreement, law, rule or regulation or under the common law]. 30 8. Publication. Every employer shall inform employees of their 31 protections, rights and obligations under this section, by posting a 32 notice thereof. Such notices shall be posted conspicuously in easily 33 accessible and well-lighted places customarily frequented by employees 34 and applicants for employment. 35 § 2. Subdivision 4 of section 741 of the labor law, as added by chap- 36 ter 24 of the laws of 2002, is amended to read as follows: 37 4. Enforcement. A health care employee may seek enforcement of this 38 section pursuant to [paragraph (d) of subdivision] subdivisions four and 39 five of section seven hundred forty of this article. 40 § 3. Subdivision 2 of section 75-b of the civil service law, as added 41 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap- 42 ter 899 of the laws of 1986, is amended to read as follows: 43 2. (a) A public employer shall not dismiss, suspend, demote, penalize, 44 threaten or discriminate against, or take other disciplinary or other 45 [adverse personnel action] act of reprisal against a public employee 46 regarding the employee's employment because the employee: (i) discloses 47 to a public body or threatens to make a disclosure to a public body or 48 supervisor if the employer does not remedy the improper conduct, to a 49 governmental body information[: (i)] regarding a violation of a law, 50 rule or regulation which violation creates [and] or presents a substan- 51 tial and specific danger to the public health or safety[; or (ii) which52the employee reasonably believes to be true and reasonably believes], or 53 which constitutes an improper governmental action[. "Improper govern-54mental action" shall mean any action by a public employer or employee,55or an agent of such employer or employee, which is undertaken in the56performance of such agent's official duties, whether or not such actionA. 5757 5 1is within the scope of his employment, and which is in violation of any2federal, state or local law, rule or regulation], or which could reason- 3 ably be expected to lead to endangering the welfare of a minor; (ii) 4 provides information to, or testifies before, any public body conducting 5 an investigation, hearing or inquiry into any violation or improper 6 governmental action; or (iii) objects to, or refuses to participate in, 7 any such violation or improper governmental action. 8 (b) The protection against retaliatory action provided in subpara- 9 graphs (i) and (ii) of paragraph (a) of this subdivision shall apply to 10 any employee who in good faith reasonably believes that a violation or 11 improper governmental action has occurred or will occur, based on infor- 12 mation that the employee in good faith reasonably believes to be true. 13 (c) Prior to disclosing information pursuant to subparagraph (i) of 14 paragraph (a) of this subdivision, an employee shall have made a good 15 faith effort to provide the appointing authority or his or her designee 16 the information to be disclosed and shall provide the appointing author- 17 ity or designee a reasonable time to take appropriate action unless 18 there is imminent and serious danger to public health or safety. For the 19 purposes of this subdivision, an employee who acts pursuant to this 20 paragraph shall be deemed to have disclosed information to a govern- 21 mental body under paragraph (a) of this subdivision. Notification to 22 the appointing authority or designee shall not be required where: (i) 23 the employer has not posted any notice required by subdivision five of 24 this section; (ii) there is an imminent and serious danger to the public 25 health or safety; (iii) the employee reasonably believes that reporting 26 to the appointing authority or designee would result in a destruction of 27 evidence or other concealment of the improper governmental action; or 28 (iv) such activity could reasonably be expected to lead to endangering 29 the welfare of a minor. 30 (d) "Improper governmental action" shall mean any practice, procedure, 31 action or failure to act by a public employer or employee, or an agent 32 of such employer or employee, which is undertaken in the performance of 33 such agent's official duties, whether or not such action is within the 34 scope of such person's employment, and which is in violation of any law, 35 rule or regulation regarding governmental action punishable by imprison- 36 ment or civil or criminal penalty. "Law, rule or regulation" includes: 37 (i) any duly enacted federal, state or local statute or ordinance; (ii) 38 any rule or regulation promulgated pursuant to any such statute or ordi- 39 nance; or (iii) any judicial or administrative decision, ruling or 40 order. 41 § 4. Subdivision 3 of section 75-b of the civil service law, as added 42 by chapter 660 of the laws of 1984, is amended to read as follows: 43 3. (a) Where an employee is subject to dismissal or other disciplinary 44 action under a final and binding arbitration provision, or other disci- 45 plinary procedure contained in a collectively negotiated agreement, or 46 under section seventy-five of this title or any other provision of state 47 or local law, or to the elimination of job title or classification that 48 uniquely fits and singles out such employee and the employee reasonably 49 believes that such dismissal [or], other disciplinary action or other 50 adverse action would not have been taken but for the conduct protected 51 under subdivision two of this section, he or she may assert such as a 52 defense before the designated arbitrator or hearing officer. The merits 53 of such defense shall be considered and determined as part of the arbi- 54 tration award or hearing officer decision of the matter. If there is a 55 finding that the dismissal or other disciplinary action is based solely 56 on a violation by the employer of such subdivision, the arbitrator orA. 5757 6 1 hearing officer shall dismiss or recommend dismissal of the disciplinary 2 proceeding, as appropriate, and, if appropriate, reinstate the employee 3 with back pay, and, in the case of an arbitration procedure, may take 4 other appropriate action as is permitted in the collectively negotiated 5 agreement. 6 (b) Where an employee is subject to a collectively negotiated agree- 7 ment which contains provisions preventing an employer from taking 8 adverse [personnel] actions and which contains a final and binding arbi- 9 tration provision to resolve alleged violations of such provisions of 10 the agreement and the employee reasonably believes that such [personnel] 11 action would not have been taken but for the conduct protected under 12 subdivision two of this section, he or she may assert such as a claim 13 before the arbitrator. The arbitrator shall consider such claim and 14 determine its merits and shall, if a determination is made that such 15 adverse [personnel] ion is based on a violation by the employer of such 16 subdivision, take such action to remedy the violation as is permitted by 17 the collectively negotiated agreement. 18 (c) [Where] In addition to or in lieu of the procedures set forth in 19 paragraphs (a) and (b) of this subdivision, or where an employee is not 20 subject to any of the provisions of [paragraph (a) or (b) of this subdi-21vision] such paragraphs, the employee may commence an action in a court 22 of competent jurisdiction under the same terms and conditions and for 23 the same relief as set forth in article twenty-C of the labor law. 24 § 5. Section 75-b of the civil service law is amended by adding a new 25 subdivision 5 to read as follows: 26 5. Every public employer shall inform employees of their protections, 27 rights and obligations under this section, by posting a notice thereof. 28 Such notices shall be posted conspicuously in easily accessible and 29 well-lighted places customarily frequented by employees and applicants 30 for employment. 31 § 6. This act shall take effect on the ninetieth day after it shall 32 have become a law.