Bill Text: NY A07144 | 2009-2010 | General Assembly | Amended
Bill Title: Enacts provisions providing protection to employees from retaliatory actions by employers where such employees report illegal business activities or improper governmental actions.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Vetoed) 2009-09-17 - tabled [A07144 Detail]
Download: New_York-2009-A07144-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7144--A
2009-2010 Regular Sessions
I N A S S E M B L Y
March 25, 2009
___________
Introduced by M. of A. BENEDETTO, LUPARDO -- read once and referred to
the Committee on Labor -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the labor law and the civil service law, in relation to
protection of 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 S 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-
21 larly-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.
LBD10460-03-9
A. 7144--A 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 [or
11 demotion of], DEMOTION OR PENALIZATION AGAINST an employee, or other
12 adverse employment action taken against an employee in the terms and
13 conditions of employment.
14 (f) "Supervisor" means any individual within an employer's organiza-
15 tion who has the authority to direct and control the work performance of
16 [the affected] AN employee; or who has [managerial] authority to take
17 corrective action regarding the [violation of the law, rule or regu-
18 lation] ILLEGAL BUSINESS ACTIVITY of which the employee complains.
19 (g) "Health care fraud" means health care fraud as defined by article
20 one hundred seventy-seven of the penal law.
21 (H) "AGENT" MEANS ANY INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPO-
22 RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
23 (I) "ILLEGAL BUSINESS ACTIVITY" MEANS ANY PRACTICE, PROCEDURE, ACTION
24 OR FAILURE TO ACT BY AN EMPLOYER, OR AN EMPLOYEE OR AGENT OF SUCH
25 EMPLOYER, TAKEN IN THE COURSE OF THE EMPLOYER'S BUSINESS, WHETHER OR NOT
26 WITHIN THE SCOPE OF EMPLOYMENT OR AGENCY, WHICH IS IN VIOLATION OF ANY
27 LAW, RULE OR REGULATION REGARDING BUSINESS PRACTICES PUNISHABLE BY
28 IMPRISONMENT OR CIVIL OR CRIMINAL PENALTY.
29 2. Prohibitions. An employer shall not take any retaliatory personnel
30 action against an employee because such employee does any of the follow-
31 ing:
32 (a) discloses TO A SUPERVISOR OR A PUBLIC BODY, or threatens to
33 disclose to a [supervisor or to a] public body UNLESS THE ILLEGAL BUSI-
34 NESS ACTIVITY IS REMEDIED, INFORMATION ABOUT an ILLEGAL BUSINESS activ-
35 ity[, policy or practice of the employer that is in violation of law,
36 rule or regulation which violation creates and presents a substantial
37 and specific danger to the public health or safety, or which constitutes
38 health care fraud];
39 (b) provides information to, or testifies before, any public body
40 conducting an investigation, hearing or inquiry into any such [violation
41 of a law, rule or regulation by such employer] ILLEGAL BUSINESS
42 ACTIVITY; or
43 (c) objects to, or refuses to participate in any [such] ILLEGAL BUSI-
44 NESS activity[, policy or practice in violation of a law, rule or regu-
45 lation].
46 3. Application. The protection against retaliatory personnel action
47 provided by PARAGRAPHS (A) AND (B) OF SUBDIVISION TWO OF THIS SECTION
48 SHALL APPLY TO ANY EMPLOYEE WHO IN GOOD FAITH REASONABLY BELIEVES THAT
49 AN ILLEGAL BUSINESS ACTIVITY HAS OCCURRED OR WILL OCCUR, BASED ON INFOR-
50 MATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE;
51 PROVIDED HOWEVER THAT THE PROTECTION AGAINST RETALIATORY PERSONNEL
52 ACTION PROVIDED BY paragraph (a) of subdivision two of this section
53 pertaining to disclosure to a public body shall not apply to an employee
54 who makes such disclosure to a public body unless the employee has
55 [brought] MADE A GOOD FAITH EFFORT TO NOTIFY HIS OR HER EMPLOYER BY
56 BRINGING the ILLEGAL BUSINESS activity[, policy or practice in violation
A. 7144--A 3
1 of law, rule or regulation] to the attention of a supervisor [of the
2 employer] and has afforded such employer a reasonable opportunity to
3 correct such activity[, policy or practice]. EMPLOYER NOTIFICATION SHALL
4 NOT BE REQUIRED WHERE: (A) THE EMPLOYER HAS NOT POSTED ANY NOTICE
5 REQUIRED BY SUBDIVISION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT
6 AND SERIOUS DANGER TO THE PUBLIC HEALTH OR SAFETY; (C) THE EMPLOYEE
7 REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN A
8 DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE ILLEGAL BUSINESS
9 ACTIVITY; OR (D) SUCH VIOLATION COULD REASONABLY BE EXPECTED TO LEAD TO
10 ENDANGERING THE WELFARE OF A MINOR.
11 4. Violation; remedy. (a) An employee who has been the subject of a
12 retaliatory personnel action in violation of this section may institute
13 a civil action in a court of competent jurisdiction for relief as set
14 forth in subdivision five of this section within [one year] TWO YEARS
15 after the alleged retaliatory personnel action was taken.
16 (b) Any action authorized by this section may be brought in the county
17 in which the alleged retaliatory personnel action occurred, in the coun-
18 ty in which the complainant resides, or in the county in which the
19 employer has its principal place of business.
20 (c) It shall be a defense to any action brought pursuant to this
21 section that the personnel action was predicated upon grounds other than
22 the employee's exercise of any rights protected by this section. It
23 shall also be a defense that the individual was an independent contrac-
24 tor.
25 [(d) Notwithstanding the provisions of paragraphs (a) and (c) of this
26 subdivision, a health care employee who has been the subject of a retal-
27 iatory action by a health care employer in violation of section seven
28 hundred forty-one of this article may institute a civil action in a
29 court of competent jurisdiction for relief as set forth in subdivision
30 five of this section within two years after the alleged retaliatory
31 personnel action was taken. In addition to the relief set forth in that
32 subdivision, the court, in its discretion, based upon a finding that the
33 employer acted in bad faith in the retaliatory action, may assess the
34 employer a civil penalty of an amount not to exceed ten thousand
35 dollars, to be paid to the improving quality of patient care fund,
36 established pursuant to section ninety-seven-aaaa of the state finance
37 law.]
38 5. Relief. In any action brought pursuant to subdivision four of this
39 section, the court may order relief as follows:
40 (a) [an injunction to restrain continued violation of this section;
41 (b)] the reinstatement of the employee to the same position held
42 before the retaliatory personnel action, or to an equivalent position;
43 [(c)] (B) the reinstatement of full fringe benefits and seniority
44 rights;
45 [(d)] (C) the compensation for lost wages, benefits and other remuner-
46 ation; [and
47 (e)] (D) COMPENSATORY DAMAGES FOR ECONOMIC LOSS;
48 (E) the payment by the employer of reasonable costs, disbursements,
49 and attorney's fees;
50 (F) AN INJUNCTION TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF
51 THIS SECTION WITH RESPECT TO THE EMPLOYEE; AND
52 (G) A CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS,
53 IF THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD
54 FAITH IN THE RETALIATORY ACTION.
55 6. Employer relief. A court, in its discretion, may also order that
56 reasonable attorneys' fees and court costs and disbursements be awarded
A. 7144--A 4
1 to an employer if the court determines that an action brought by an
2 employee under this section was without REASONABLE basis in law or in
3 fact.
4 7. Existing rights. Nothing in this section shall be deemed to dimin-
5 ish the rights, privileges, or remedies of any employee under any other
6 law or regulation or under any collective bargaining agreement or
7 employment contract; except that the institution of an action in accord-
8 ance with this section shall be deemed a waiver of the rights and reme-
9 dies available under any other contract, collective bargaining agree-
10 ment, law, rule or regulation or under the common law.
11 8. PUBLICATION. EVERY EMPLOYER SHALL INFORM EMPLOYEES OF THEIR
12 PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A
13 NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY
14 ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
15 AND APPLICANTS FOR EMPLOYMENT.
16 S 2. Subdivision 4 of section 741 of the labor law, as added by chap-
17 ter 24 of the laws of 2002, is amended to read as follows:
18 4. Enforcement. A health care employee may seek enforcement of this
19 section pursuant to [paragraph (d) of] subdivision four of section seven
20 hundred forty of this article.
21 S 3. Subdivision 2 of section 75-b of the civil service law, as added
22 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
23 ter 899 of the laws of 1986, is amended to read as follows:
24 2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE OR PENAL-
25 IZE or take other disciplinary or other [adverse personnel action] ACT
26 OF REPRISAL against a public employee regarding the employee's employ-
27 ment because the employee: (I) discloses TO A GOVERNMENTAL BODY OR
28 THREATENS TO DISCLOSE IF THE IMPROPER CONDUCT IS NOT REMEDIED, to a
29 governmental body information[: (i)] regarding a violation of a law,
30 rule or regulation which violation creates and presents a substantial
31 and specific danger to the public health or safety[; or (ii) which the
32 employee reasonably believes to be true and reasonably believes], OR
33 WHICH constitutes an improper governmental action[. "Improper govern-
34 mental action" shall mean any action by a public employer or employee,
35 or an agent of such employer or employee, which is undertaken in the
36 performance of such agent's official duties, whether or not such action
37 is within the scope of his employment, and which is in violation of any
38 federal, state or local law, rule or regulation], OR WHICH COULD REASON-
39 ABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; (II)
40 PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING
41 AN INVESTIGATION, HEARING OR INQUIRY INTO ANY IMPROPER GOVERNMENTAL
42 ACTION; OR (III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY IMPROPER
43 GOVERNMENTAL ACTION.
44 (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN
45 SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL
46 APPLY TO ANY EMPLOYEE WHO IN GOOD FAITH REASONABLY BELIEVES THAT A
47 VIOLATION OR IMPROPER GOVERNMENTAL ACTION HAS OCCURRED OR WILL OCCUR,
48 BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES
49 TO BE TRUE.
50 (C) Prior to disclosing information pursuant to SUBPARAGRAPH (I) OF
51 paragraph (a) of this subdivision, an employee shall have made a good
52 faith effort to provide the appointing authority or his or her designee
53 the information to be disclosed and shall provide the appointing author-
54 ity or designee a reasonable time to take appropriate action unless
55 there is imminent and serious danger to public health or safety. For the
56 purposes of this subdivision, an employee who acts pursuant to this
A. 7144--A 5
1 paragraph shall be deemed to have disclosed information to a govern-
2 mental body under paragraph (a) of this subdivision. NOTIFICATION TO
3 THE APPOINTING AUTHORITY OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I)
4 THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION FIVE OF
5 THIS SECTION; (II) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC
6 HEALTH OR SAFETY; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING
7 TO THE SUPERVISOR WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER
8 CONCEALMENT OF THE ILLEGAL BUSINESS ACTIVITY; OR (IV) SUCH VIOLATION
9 COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A
10 MINOR.
11 (D) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCEDURE,
12 ACTION OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR AN AGENT
13 OF SUCH EMPLOYER OR EMPLOYEE, WHICH IS UNDERTAKEN IN THE PERFORMANCE OF
14 SUCH AGENT'S OFFICIAL DUTIES, WHETHER OR NOT SUCH ACTION IS WITHIN THE
15 SCOPE OF SUCH PERSON'S EMPLOYMENT, WHICH IS IN VIOLATION OF ANY LAW,
16 RULE OR REGULATION REGARDING GOVERNMENTAL ACTION PUNISHABLE BY IMPRISON-
17 MENT OR CIVIL OR CRIMINAL PENALTY. "LAW, RULE OR REGULATION" INCLUDES:
18 (I) ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE; (II)
19 ANY RULE OR REGULATION PROMULGATED PURSUANT TO ANY SUCH STATUTE OR ORDI-
20 NANCE; OR (III) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR
21 ORDER.
22 S 4. Subdivision 3 of section 75-b of the civil service law, as added
23 by chapter 660 of the laws of 1984, is amended to read as follows:
24 3. (a) Where an employee is subject to dismissal or other disciplinary
25 action under a final and binding arbitration provision, or other disci-
26 plinary procedure contained in a collectively negotiated agreement, or
27 under section seventy-five of this title or any other provision of state
28 or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT
29 UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably
30 believes THAT SUCH dismissal [or], other disciplinary action OR OTHER
31 PERSONNEL ACTION would not have been taken but for the conduct protected
32 under subdivision two of this section, he or she may assert such as a
33 defense before the designated arbitrator or hearing officer. The merits
34 of such defense shall be considered and determined as part of the arbi-
35 tration award or hearing officer decision of the matter. If there is a
36 finding that the dismissal or other disciplinary action is based solely
37 on a violation by the employer of such subdivision, the arbitrator or
38 hearing officer shall dismiss or recommend dismissal of the disciplinary
39 proceeding, as appropriate, and, if appropriate, reinstate the employee
40 with back pay, and, in the case of an arbitration procedure, may take
41 other appropriate action as is permitted in the collectively negotiated
42 agreement.
43 (b) Where an employee is subject to a collectively negotiated agree-
44 ment which contains provisions preventing an employer from taking
45 adverse personnel actions and which contains a final and binding arbi-
46 tration provision to resolve alleged violations of such provisions of
47 the agreement and the employee reasonably believes that such personnel
48 action would not have been taken but for the conduct protected under
49 subdivision two of this section, he or she may assert such as a claim
50 before the arbitrator. The arbitrator shall consider such claim and
51 determine its merits and shall, if a determination is made that such
52 adverse personnel action is based on a violation by the employer of such
53 subdivision, take such action to remedy the violation as is permitted by
54 the collectively negotiated agreement.
55 (c) [Where] IN ADDITION TO OR IN LIEU OF THE PROCEDURES SET FORTH IN
56 PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION, OR WHERE an employee is not
A. 7144--A 6
1 subject to any of the provisions of [paragraph (a) or (b) of this subdi-
2 vision] SUCH PARAGRAPHS, the employee may commence an action in a court
3 of competent jurisdiction under the same terms and conditions AND FOR
4 THE SAME RELIEF as set forth in article twenty-C of the labor law.
5 S 5. Section 75-b of the civil service law is amended by adding a new
6 subdivision 5 to read as follows:
7 5. EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS,
8 RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF.
9 SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND
10 WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS
11 FOR EMPLOYMENT.
12 S 6. This act shall take effect on the ninetieth day after it shall
13 have become a law.
