Bill Text: NY A07384 | 2019-2020 | General Assembly | Amended


Bill Title: Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal or dangerous business activities.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2020-07-17 - reported referred to rules [A07384 Detail]

Download: New_York-2019-A07384-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         7384--A

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                     April 29, 2019
                                       ___________

        Introduced  by  M.  of  A.  BENEDETTO  --  read once and referred to the
          Committee on Labor -- recommitted to the Committee on Labor in accord-
          ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee

        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,
     4  paragraph (d) of subdivision 4 as added by chapter 24  of  the  laws  of
     5  2002,  and  subdivision 7 as amended by chapter 684 of the laws of 2019,
     6  is amended to read as follows:
     7    § 740. Retaliatory [personnel] action by  employers;  prohibition.  1.
     8  Definitions.  For  purposes  of this section, unless the context specif-
     9  ically indicates otherwise:
    10    (a) "Employee" means an individual who performs services for and under
    11  the control and direction of an employer for wages  or  other  remunera-
    12  tion.
    13    (b)  "Employer"  means  any  person,  firm,  partnership, institution,
    14  corporation, or association that employs one or more employees.
    15    (c) "Law, rule or regulation" includes: (i) any duly enacted  federal,
    16  state  or  local  statute or ordinance [or]; (ii) any rule or regulation
    17  promulgated pursuant to [any federal, state or local]  such  statute  or
    18  ordinance;  or  (iii) any judicial or administrative decision, ruling or
    19  order.
    20    (d) "Public body" includes the following:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01535-05-0

        A. 7384--A                          2

     1    (i) the United States Congress, any state legislature, or  any  [popu-
     2  larly-elected] elected local governmental body, or any member or employ-
     3  ee thereof;
     4    (ii)  any federal, state, or local [judiciary] court, or any member or
     5  employee thereof, or any grand or petit jury;
     6    (iii) any federal, state,  or  local  regulatory,  administrative,  or
     7  public agency or authority, or instrumentality thereof; [or]
     8    (iv) any federal, state, or local law enforcement agency, prosecutori-
     9  al office, or police or peace officer;
    10    (v)  any  federal, state or local department of an executive branch of
    11  government; or
    12    (vi) any division, board, bureau, office, committee, or commission  of
    13  any  of  the public bodies described in subparagraphs (i) through (v) of
    14  this paragraph.
    15    (e) "Retaliatory [personnel] action" means the  discharge,  suspension
    16  [or  demotion  of],  demotion, penalization or discrimination against an
    17  employee or former employee, or other adverse [employment] action  taken
    18  against  an  employee  [in  the  terms  and conditions of employment] or
    19  former employee.
    20    (f) "Supervisor" means any individual within an  employer's  organiza-
    21  tion who has the authority to direct and control the work performance of
    22  [the  affected]  an  employee; or who has [managerial] authority to take
    23  corrective action regarding the [violation of the  law,  rule  or  regu-
    24  lation]  illegal  or  dangerous  business activity of which the employee
    25  complains.
    26    (g) ["Health care fraud" means health care fraud as defined by article
    27  one hundred seventy-seven of the penal law.] "Agent" means any  individ-
    28  ual, partnership, association, corporation or group of persons acting on
    29  behalf of an employer.
    30    (h)  "Illegal  or  dangerous  business  activity"  means any practice,
    31  procedure, action or failure to act by an employer, or  an  employee  or
    32  agent  of such employer, taken in the course of the employer's business,
    33  whether or not within the scope of employment or agency, that: (i) is in
    34  violation of any law, rule or regulation; or (ii) creates and presents a
    35  substantial and specific danger to the public health or safety.
    36    2. Prohibitions. An employer shall not take any  retaliatory  [person-
    37  nel] action against an employee or former employee because such employee
    38  or  former  employee  does  any  of  the following while employed by the
    39  employer, whether or not within the scope of the employee's job duties:
    40    (a) discloses to a supervisor  or  a  public  body,  or  threatens  to
    41  [disclose]  make  a  disclosure  to  a  [supervisor or to a] public body
    42  unless the employer remedies the illegal or dangerous business activity,
    43  information about an illegal or dangerous business activity[, policy  or
    44  practice of the employer that is in violation of law, rule or regulation
    45  which  violation  creates and presents a substantial and specific danger
    46  to the public health or safety, or which constitutes health care fraud];
    47    (b) provides information to, or  testifies  before,  any  public  body
    48  conducting an investigation, hearing or inquiry into any such [violation
    49  of  a  law,  rule  or  regulation by such employer] illegal or dangerous
    50  business activity; or
    51    (c) objects to, or refuses to participate in, any  [such]  illegal  or
    52  dangerous  business activity[, policy or practice in violation of a law,
    53  rule or regulation].
    54    3. Application. The protection against retaliatory [personnel]  action
    55  provided  by  paragraphs  (a),  (b)  and  (c) of subdivision two of this
    56  section shall apply  to  any  employee  who  in  good  faith  reasonably

        A. 7384--A                          3

     1  believes  that an illegal or dangerous business activity has occurred or
     2  will occur, based on information that the employee in good faith reason-
     3  ably believes to be true; provided however that the  protection  against
     4  retaliatory  action provided by paragraph (a) of subdivision two of this
     5  section pertaining to disclosure to a public body shall not apply to  an
     6  employee  who makes such disclosure to a public body unless the employee
     7  has [brought] made a good faith effort to notify his or her employer  by
     8  bringing the illegal or dangerous business activity[, policy or practice
     9  in  violation of law, rule or regulation] to the attention of a supervi-
    10  sor [of the employer] and has afforded such employer a reasonable oppor-
    11  tunity to correct such activity[, policy  or  practice].  Such  employer
    12  notification shall not be required where: (a) the employer has not post-
    13  ed  any  notice required by subdivision eight of this section; (b) there
    14  is an imminent and serious danger to the public health  or  safety;  (c)
    15  the  employee reasonably believes that reporting to the supervisor would
    16  result in a destruction of evidence or other concealment of the  illegal
    17  or  dangerous  business  activity; (d) such activity could reasonably be
    18  expected to lead to endangering the welfare of a minor; (e) the employee
    19  reasonably believes that reporting to the  supervisor  would  result  in
    20  physical  harm  to the employee or any other person; or (f) the employee
    21  reasonably believes that the supervisor is already aware of the  illegal
    22  or dangerous business activity and will not correct such activity.
    23    4.  Violation;  remedy.  (a) An employee who has been the subject of a
    24  retaliatory [personnel] action in violation of this section  may  insti-
    25  tute  a  civil action in a court of competent jurisdiction for relief as
    26  set forth in subdivision five of this  section  within  [one  year]  two
    27  years after the alleged retaliatory [personnel] action was taken.
    28    (b) Any action authorized by this section may be brought in the county
    29  in  which  the  alleged  retaliatory [personnel] action occurred, in the
    30  county in which the complainant resides, or in the county in  which  the
    31  employer  has  its principal place of business.  In any such action, the
    32  parties shall be entitled to a jury trial.
    33    (c) [It shall be a defense to any  action  brought  pursuant  to  this
    34  section that the personnel action was predicated upon grounds other than
    35  the employee's exercise of any rights protected by this section.] Except
    36  as  otherwise  provided  in this section, a violation of this section is
    37  established when the complainant demonstrates that a  motivating  factor
    38  for  the  retaliatory  action  violates subdivision two of this section.
    39  Remedies for violation of subdivision  two  of  this  section  shall  be
    40  limited  solely  to  those  provided  in  paragraphs (e), (f) and (g) of
    41  subdivision five of this section if the employer  demonstrates  that  it
    42  would  have  taken  the  same action in the absence of the impermissible
    43  motivating factor. It shall [also] be a defense that the individual  was
    44  an independent contractor.
    45    [(d)  Notwithstanding the provisions of paragraphs (a) and (c) of this
    46  subdivision, a health care employee who has been the subject of a retal-
    47  iatory action by a health care employer in violation  of  section  seven
    48  hundred  forty-one  of  this  article  may institute a civil action in a
    49  court of competent jurisdiction for relief as set forth  in  subdivision
    50  five  of  this  section  within  two years after the alleged retaliatory
    51  personnel action was taken. In addition to the relief set forth in  that
    52  subdivision, the court, in its discretion, based upon a finding that the
    53  employer  acted  in  bad faith in the retaliatory action, may assess the
    54  employer a civil penalty  of  an  amount  not  to  exceed  ten  thousand
    55  dollars,  to  be  paid  to  the  improving quality of patient care fund,

        A. 7384--A                          4

     1  established pursuant to section ninety-seven-aaaa of the  state  finance
     2  law.]
     3    5.  Relief. In any action brought pursuant to subdivision four of this
     4  section, the court may order relief as follows, with monetary amounts as
     5  determined by the jury other than under paragraph (e)  and/or  paragraph
     6  (g) of this subdivision:
     7    (a) [an injunction to restrain continued violation of this section;
     8    (b)]  the  reinstatement  of  the  employee  to the same position held
     9  before the retaliatory [personnel] action[,] or to an  equivalent  posi-
    10  tion, or front pay in lieu thereof;
    11    [(c)]  (b)  the  reinstatement  of  full fringe benefits and seniority
    12  rights;
    13    [(d)] (c) the compensation for lost wages, benefits and other remuner-
    14  ation; [and]
    15    (d) compensatory damages for economic loss and for emotional distress;
    16    (e) the payment by the employer of  reasonable  costs,  disbursements,
    17  and attorney's fees;
    18    (f)  an  injunction  to restrain the employer's continued violation of
    19  this section; and
    20    (g) a civil penalty of an amount not to exceed  ten  thousand  dollars
    21  and/or  a  liquidated damages award equal to amounts of damages pursuant
    22  to paragraphs (c) and (d) of this subdivision, unless  the  court  finds
    23  that the employer acted in good faith in the retaliatory action.
    24    6.  Employer  relief.  A court, in its discretion, may also order that
    25  reasonable attorneys' fees and court costs and disbursements be  awarded
    26  to  an  employer  if  the  court determines that an action brought by an
    27  employee under this section was without basis in law or in fact.
    28    7. Existing rights. Nothing in this section shall be deemed to  dimin-
    29  ish  the rights, privileges, or remedies of any employee under any other
    30  law or regulation  or  under  any  collective  bargaining  agreement  or
    31  employment contract.
    32    8.  Publication.  Every  employer  shall  inform  employees  of  their
    33  protections, rights and obligations under this  section,  by  posting  a
    34  notice  thereof.    Such notices shall be posted conspicuously in easily
    35  accessible and well-lighted places customarily frequented  by  employees
    36  and applicants for employment.
    37    §  2. Subdivision 4 of section 741 of the labor law, as added by chap-
    38  ter 24 of the laws of 2002, is amended and a new subdivision 6 is  added
    39  to read as follows:
    40    4.  Enforcement.  A  health care employee may seek enforcement of this
    41  section pursuant to [paragraph (d) of subdivision] subdivisions four and
    42  five of section seven hundred forty of this article.
    43    6.  Publication.  Every  employer  shall  inform  employees  of  their
    44  protections,  rights  and  obligations  under  this section by posting a
    45  notice thereof. Such notices shall be  posted  conspicuously  in  easily
    46  accessible  and  well-lighted places customarily frequented by employees
    47  and applicants for employment.
    48    § 3. Subdivision 2 of section 75-b of the civil service law, as  added
    49  by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap-
    50  ter 899 of the laws of 1986, is amended to read as follows:
    51    2. (a) A public employer shall not dismiss, suspend, demote, penalize,
    52  threaten  or  discriminate  against, or take other disciplinary or other
    53  [adverse personnel action] act of reprisal  against  a  public  employee
    54  regarding  the employee's employment because the employee: (i) discloses
    55  to a public body or threatens to make a disclosure to a public  body  or
    56  supervisor  if  the  employer does not remedy the improper conduct, to a

        A. 7384--A                          5

     1  governmental body information[: (i)] regarding a  violation  of  a  law,
     2  rule  or regulation which violation creates [and] or presents a substan-
     3  tial and specific danger to the public health or safety[; or (ii)  which
     4  the employee reasonably believes to be true and reasonably believes], or
     5  which  constitutes  an  improper governmental action[. "Improper govern-
     6  mental action" shall mean any action by a public employer  or  employee,
     7  or  an  agent  of  such employer or employee, which is undertaken in the
     8  performance of such agent's official duties, whether or not such  action
     9  is  within the scope of his employment, and which is in violation of any
    10  federal, state or local law, rule or regulation], or which could reason-
    11  ably be expected to lead to endangering the welfare  of  a  minor;  (ii)
    12  provides information to, or testifies before, any public body conducting
    13  an  investigation,  hearing  or  inquiry  into any violation or improper
    14  governmental action; or (iii) objects to, or refuses to participate  in,
    15  any such violation or improper governmental action.
    16    (b)  The  protection  against  retaliatory action provided in subpara-
    17  graphs (i) and (ii) of paragraph (a) of this subdivision shall apply  to
    18  any  employee  who in good faith reasonably believes that a violation or
    19  improper governmental action has occurred or will occur, based on infor-
    20  mation that the employee in good faith reasonably believes to be true.
    21    (c) Prior to disclosing information pursuant to  subparagraph  (i)  of
    22  paragraph  (a)  of  this subdivision, an employee shall have made a good
    23  faith effort to provide the appointing authority or his or her  designee
    24  the information to be disclosed and shall provide the appointing author-
    25  ity  or  designee  a  reasonable  time to take appropriate action unless
    26  there is imminent and serious danger to public health or  safety.    For
    27  the  purposes  of  this subdivision, an employee  who  acts  pursuant to
    28  this paragraph  shall  be  deemed  to have disclosed  information  to  a
    29  governmental  body  under paragraph (a) of this subdivision.   Notifica-
    30  tion to the  appointing  authority  or designee shall  not  be  required
    31  where:   (i) the employer has not posted any notice required by subdivi-
    32  sion  five of this section; (ii) there is an imminent and serious danger
    33  to the public health  or safety; (iii) the employee reasonably  believes
    34  that reporting to the appointing authority or designee would result in a
    35  destruction  of  evidence  or  other concealment of the improper govern-
    36  mental  action;  or (iv)  such  activity could reasonably be expected to
    37  lead to endangering the welfare of a minor.
    38    (d) "Improper governmental action" shall mean any practice, procedure,
    39  action or failure to act by a public employer or employee, or  an  agent
    40  of  such employer or employee, which is undertaken in the performance of
    41  such agent's official duties, whether or not such action is  within  the
    42  scope of such person's employment, and which is: (i) in violation of any
    43  law,  rule  or regulation regarding governmental action; or (ii) creates
    44  and presents a substantial and specific danger to the public  health  or
    45  safety.  "Law, rule or regulation" includes: (i) any duly enacted feder-
    46  al, state or local statute or ordinance; (ii)  any  rule  or  regulation
    47  promulgated  pursuant  to  any  such  statute or ordinance; or (iii) any
    48  judicial or administrative decision, ruling or order.
    49    § 4. Subdivision 3 of section 75-b of the civil service law, as  added
    50  by chapter 660 of the laws of 1984, is amended to read as follows:
    51    3. (a) Where an employee is subject to dismissal or other disciplinary
    52  action  under a final and binding arbitration provision, or other disci-
    53  plinary procedure contained in a collectively negotiated  agreement,  or
    54  under section seventy-five of this title or any other provision of state
    55  or  local law, or to the elimination of job title or classification that
    56  uniquely fits and singles out such employee and the employee  reasonably

        A. 7384--A                          6

     1  believes  that  such  dismissal [or], other disciplinary action or other
     2  adverse action would not have been taken but for the  conduct  protected
     3  under  subdivision  two  of this section, he or she may assert such as a
     4  defense  before the designated arbitrator or hearing officer. The merits
     5  of such defense shall be considered and determined as part of the  arbi-
     6  tration  award  or hearing officer decision of the matter. If there is a
     7  finding that the dismissal or other disciplinary action is based  solely
     8  on  a  violation  by the employer of such subdivision, the arbitrator or
     9  hearing officer shall dismiss or recommend dismissal of the disciplinary
    10  proceeding, as appropriate, and, if appropriate, reinstate the  employee
    11  with  back  pay,  and, in the case of an arbitration procedure, may take
    12  other appropriate action as is permitted in the collectively  negotiated
    13  agreement.
    14    (b)  Where  an employee is subject to a collectively negotiated agree-
    15  ment which  contains  provisions  preventing  an  employer  from  taking
    16  adverse [personnel] actions and which contains a final and binding arbi-
    17  tration  provision  to  resolve alleged violations of such provisions of
    18  the agreement and the employee reasonably believes that such [personnel]
    19  action would not have been taken but for  the  conduct  protected  under
    20  subdivision  two  of  this section, he or she may assert such as a claim
    21  before the arbitrator. The arbitrator  shall  consider  such  claim  and
    22  determine  its  merits  and  shall, if a determination is made that such
    23  adverse [personnel] ion is based on a violation by the employer of  such
    24  subdivision, take such action to remedy the violation as is permitted by
    25  the collectively negotiated agreement.
    26    (c)  [Where]  In addition to or in lieu of the procedures set forth in
    27  paragraphs (a) and (b) of this subdivision, or where an employee is  not
    28  subject to any of the provisions of [paragraph (a) or (b) of this subdi-
    29  vision]  such paragraphs, the employee may commence an action in a court
    30  of competent jurisdiction under the same terms and  conditions  and  for
    31  the same relief as set forth in article twenty-C of the labor law.
    32    §  5. Section 75-b of the civil service law is amended by adding a new
    33  subdivision 5 to read as follows:
    34    5. Every public employer shall inform employees of their  protections,
    35  rights  and obligations under this section, by posting a notice thereof.
    36  Such notices shall be posted  conspicuously  in  easily  accessible  and
    37  well-lighted  places  customarily frequented by employees and applicants
    38  for employment.
    39    § 6. This act shall take effect on the ninetieth day  after  it  shall
    40  have become a law.
feedback