Bill Text: NY S07858 | 2015-2016 | 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 1-0)
Status: (Introduced - Dead) 2016-05-17 - REFERRED TO LABOR [S07858 Detail]
Download: New_York-2015-S07858-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7858 IN SENATE May 17, 2016 ___________ Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed 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; 25 (iii) any federal, state, or local regulatory, administrative, or 26 public agency or authority, or instrumentality thereof; [or] EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09700-01-5S. 7858 2 1 (iv) any federal, state, or local law enforcement agency, prosecutori- 2 al office, or police or peace officer; 3 (v) any federal, state or local department of an executive branch of 4 government; or 5 (vi) any division, board, bureau, office, committee, or commission of 6 any of the public bodies described in subparagraphs (i) through (v) of 7 this paragraph. 8 (e) "Retaliatory [personnel] action" means the discharge, suspension 9 [or demotion of], demotion, penalization or discrimination against an 10 employee or former employee, or other adverse [employment] action taken 11 against an employee or former employee [in the terms and conditions of12employment]. 13 (f) "Supervisor" means any individual within an employer's organiza- 14 tion who has the authority to direct and control the work performance of 15 [the affected] an employee; or who has [managerial] authority to take 16 corrective action regarding the [violation of the law, rule or regu-17lation] illegal business activity of which the employee complains. 18 (g) ["Health care fraud" means health care fraud as defined by article19one hundred seventy-seven of the penal law.] "Agent" means any individ- 20 ual, partnership, association, corporation or group of persons acting on 21 behalf of an employer. 22 (h) "Illegal business activity" means any practice, procedure, action 23 or failure to act by an employer, or an employee or agent of such 24 employer, taken in the course of the employer's business, whether or not 25 within the scope of employment or agency, that is in violation of any 26 law, rule or regulation punishable by imprisonment or civil or criminal 27 penalty. 28 2. Prohibitions. An employer shall not take any retaliatory [person-29nel] action against an employee or former employee because such employee 30 or former employee does any of the following while employed by the 31 employer, whether or not within the scope of the employee's job duties: 32 (a) discloses to a supervisor or a public body, or threatens to 33 [disclose] make a disclosure to a [supervisor or to a] public body 34 unless the employer remedies the illegal business activity, information 35 about an illegal business activity[, policy or practice of the employer36that is in violation of law, rule or regulation which violation creates37and presents a substantial and specific danger to the public health or38safety, or which constitutes health care fraud]; 39 (b) provides information to, or testifies before, any public body 40 conducting an investigation, hearing or inquiry into any such [violation41of 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-45lation]. 46 3. Application. The protection against retaliatory [personnel] action 47 provided by paragraphs (a), (b) and (c) of subdivision two of this 48 section shall apply to any employee who in good faith reasonably 49 believes that an illegal business activity has occurred or will occur, 50 based on information that the employee in good faith reasonably believes 51 to be true; provided however that the protection against retaliatory 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 violationS. 7858 3 1of law, rule or regulation] to the attention of a supervisor [of the2employer] and has afforded such employer a reasonable opportunity to 3 correct such activity[, policy or practice]. Such employer notification 4 shall 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; (d) such activity could reasonably be expected to lead to 10 endangering the welfare of a minor; (e) the employee reasonably believes 11 that reporting to the supervisor would result in physical harm to the 12 employee or any other person; or (f) the employee reasonably believes 13 that the supervisor is already aware of the illegal business activity 14 and will not correct such activity. 15 4. Violation; remedy. (a) An employee who has been the subject of a 16 retaliatory [personnel] action in violation of this section may insti- 17 tute a civil action in a court of competent jurisdiction for relief as 18 set forth in subdivision five of this section within [one year] two 19 years after the alleged retaliatory [personnel] action was taken. 20 (b) Any action authorized by this section may be brought in the county 21 in which the alleged retaliatory [personnel] action occurred, in the 22 county in which the complainant resides, or in the county in which the 23 employer has its principal place of business. In any such action, the 24 parties shall be entitled to a jury trial. 25 (c) [It shall be a defense to any action brought pursuant to this26section that the personnel action was predicated upon grounds other than27the employee's exercise of any rights protected by this section.] Except 28 as otherwise provided in this section, a violation of this section is 29 established when the complainant demonstrates that a motivating factor 30 for the retaliatory action violates subdivision two of this section. 31 Remedies for violation of subdivision two of this section shall be 32 limited solely to those provided in paragraphs (e), (f) and (g) of 33 subdivision five of this section if the employer demonstrates that it 34 would have taken the same action in the absence of the impermissible 35 motivating factor. It shall [also] be a defense that the individual was 36 an independent contractor. 37 [(d) Notwithstanding the provisions of paragraphs (a) and (c) of this38subdivision, a health care employee who has been the subject of a retal-39iatory action by a health care employer in violation of section seven40hundred forty-one of this article may institute a civil action in a41court of competent jurisdiction for relief as set forth in subdivision42five of this section within two years after the alleged retaliatory43personnel action was taken. In addition to the relief set forth in that44subdivision, the court, in its discretion, based upon a finding that the45employer acted in bad faith in the retaliatory action, may assess the46employer a civil penalty of an amount not to exceed ten thousand47dollars, to be paid to the improving quality of patient care fund,48established pursuant to section ninety-seven-aaaa of the state finance49law.] 50 5. Relief. In any action brought pursuant to subdivision four of this 51 section, the court may order relief as follows: 52 (a) [an injunction to restrain continued violation of this section;53(b)] the reinstatement of the employee to the same position held 54 before the retaliatory [personnel] action[,] or to an equivalent posi- 55 tion, or front pay in lieu thereof;S. 7858 4 1 [(c)] (b) the reinstatement of full fringe benefits and seniority 2 rights; 3 [(d)] (c) the compensation for lost wages, benefits and other remuner- 4 ation; [and5(e)] (d) compensatory damages for economic loss and for emotional 6 distress; 7 (e) the payment by the employer of reasonable costs, disbursements, 8 and attorney's fees; 9 (f) an injunction to restrain the employer's continued violation of 10 this section; and 11 (g) a civil penalty of an amount not to exceed ten thousand dollars 12 and/or a liquidated damages award equal to amounts of damages pursuant 13 to paragraphs (c) and (d) of this subdivision, if the court, in its 14 discretion, finds that the employer acted in bad faith in the retaliato- 15 ry action. 16 6. Employer relief. A court, in its discretion, may also order that 17 reasonable attorneys' fees and court costs and disbursements be awarded 18 to an employer if the court determines that an action brought by an 19 employee under this section was without basis in law or in fact. 20 7. Existing rights. Nothing in this section shall be deemed to dimin- 21 ish the rights, privileges, or remedies of any employee under any other 22 law or regulation or under any collective bargaining agreement or 23 employment contract[; except that the institution of an action in24accordance with this section shall be deemed a waiver of the rights and25remedies available under any other contract, collective bargaining26agreement, law, rule or regulation or under the common law]. 27 8. Publication. Every employer shall inform employees of their 28 protections, rights and obligations under this section, by posting a 29 notice thereof. Such notices shall be posted conspicuously in easily 30 accessible and well-lighted places customarily frequented by employees 31 and applicants for employment. 32 § 2. Subdivision 4 of section 741 of the labor law, as added by chap- 33 ter 24 of the laws of 2002, is amended to read as follows: 34 4. Enforcement. A health care employee may seek enforcement of this 35 section pursuant to [paragraph (d) of subdivision] subdivisions four and 36 five of section seven hundred forty of this article. 37 § 3. Subdivision 2 of section 75-b of the civil service law, as added 38 by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap- 39 ter 899 of the laws of 1986, is amended to read as follows: 40 2. (a) A public employer shall not dismiss, suspend, demote, penalize, 41 threaten or discriminate against, or take other disciplinary or other 42 [adverse personnel action] act of reprisal against a public employee 43 regarding the employee's employment because the employee: (i) discloses 44 to a public body or threatens to make a disclosure to a public body or 45 supervisor if the employer does not remedy the improper conduct, to a 46 governmental body information[: (i)] regarding a violation of a law, 47 rule or regulation which violation creates [and] or presents a substan- 48 tial and specific danger to the public health or safety[; or (ii) which49the employee reasonably believes to be true and reasonably believes], or 50 which constitutes an improper governmental action[. "Improper govern-51mental action" shall mean any action by a public employer or employee,52or an agent of such employer or employee, which is undertaken in the53performance of such agent's official duties, whether or not such action54is within the scope of his employment, and which is in violation of any55federal, state or local law, rule or regulation], or which could reason- 56 ably be expected to lead to endangering the welfare of a minor; (ii)S. 7858 5 1 provides information to, or testifies before, any public body conducting 2 an investigation, hearing or inquiry into any violation or improper 3 governmental action; or (iii) objects to, or refuses to participate in, 4 any such violation or improper governmental action. 5 (b) The protection against retaliatory action provided in subpara- 6 graphs (i) and (ii) of paragraph (a) of this subdivision shall apply to 7 any employee who in good faith reasonably believes that a violation or 8 improper governmental action has occurred or will occur, based on infor- 9 mation that the employee in good faith reasonably believes to be true. 10 (c) Prior to disclosing information pursuant to subparagraph (i) of 11 paragraph (a) of this subdivision, an employee shall have made a good 12 faith effort to provide the appointing authority or his or her designee 13 the information to be disclosed and shall provide the appointing author- 14 ity or designee a reasonable time to take appropriate action unless 15 there is imminent and serious danger to public health or safety. For the 16 purposes of this subdivision, an employee who acts pursuant to this 17 paragraph shall be deemed to have disclosed information to a govern- 18 mental body under paragraph (a) of this subdivision. Notification to 19 the appointing authority or designee shall not be required where: (i) 20 the employer has not posted any notice required by subdivision five of 21 this section; (ii) there is an imminent and serious danger to the public 22 health or safety; (iii) the employee reasonably believes that reporting 23 to the appointing authority or designee would result in a destruction of 24 evidence or other concealment of the improper governmental action; or 25 (iv) such activity could reasonably be expected to lead to endangering 26 the welfare of a minor. 27 (d) "Improper governmental action" shall mean any practice, procedure, 28 action or failure to act by a public employer or employee, or an agent 29 of such employer or employee, which is undertaken in the performance of 30 such agent's official duties, whether or not such action is within the 31 scope of such person's employment, and which is in violation of any law, 32 rule or regulation regarding governmental action punishable by imprison- 33 ment or civil or criminal penalty. "Law, rule or regulation" includes: 34 (i) any duly enacted federal, state or local statute or ordinance; (ii) 35 any rule or regulation promulgated pursuant to any such statute or ordi- 36 nance; or (iii) any judicial or administrative decision, ruling or 37 order. 38 § 4. Subdivision 3 of section 75-b of the civil service law, as added 39 by chapter 660 of the laws of 1984, is amended to read as follows: 40 3. (a) Where an employee is subject to dismissal or other disciplinary 41 action under a final and binding arbitration provision, or other disci- 42 plinary procedure contained in a collectively negotiated agreement, or 43 under section seventy-five of this title or any other provision of state 44 or local law, or to the elimination of job title or classification that 45 uniquely fits and singles out such employee and the employee reasonably 46 believes that such dismissal [or], other disciplinary action or other 47 adverse action would not have been taken but for the conduct protected 48 under subdivision two of this section, he or she may assert such as a 49 defense before the designated arbitrator or hearing officer. The merits 50 of such defense shall be considered and determined as part of the arbi- 51 tration award or hearing officer decision of the matter. If there is a 52 finding that the dismissal or other disciplinary action is based solely 53 on a violation by the employer of such subdivision, the arbitrator or 54 hearing officer shall dismiss or recommend dismissal of the disciplinary 55 proceeding, as appropriate, and, if appropriate, reinstate the employee 56 with back pay, and, in the case of an arbitration procedure, may takeS. 7858 6 1 other appropriate action as is permitted in the collectively negotiated 2 agreement. 3 (b) Where an employee is subject to a collectively negotiated agree- 4 ment which contains provisions preventing an employer from taking 5 adverse [personnel] actions and which contains a final and binding arbi- 6 tration provision to resolve alleged violations of such provisions of 7 the agreement and the employee reasonably believes that such [personnel] 8 action would not have been taken but for the conduct protected under 9 subdivision two of this section, he or she may assert such as a claim 10 before the arbitrator. The arbitrator shall consider such claim and 11 determine its merits and shall, if a determination is made that such 12 adverse [personnel] ion is based on a violation by the employer of such 13 subdivision, take such action to remedy the violation as is permitted by 14 the collectively negotiated agreement. 15 (c) [Where] In addition to or in lieu of the procedures set forth in 16 paragraphs (a) and (b) of this subdivision, or where an employee is not 17 subject to any of the provisions of [paragraph (a) or (b) of this subdi-18vision] such paragraphs, the employee may commence an action in a court 19 of competent jurisdiction under the same terms and conditions and for 20 the same relief as set forth in article twenty-C of the labor law. 21 § 5. Section 75-b of the civil service law is amended by adding a new 22 subdivision 5 to read as follows: 23 5. Every public employer shall inform employees of their protections, 24 rights and obligations under this section, by posting a notice thereof. 25 Such notices shall be posted conspicuously in easily accessible and 26 well-lighted places customarily frequented by employees and applicants 27 for employment. 28 § 6. This act shall take effect on the ninetieth day after it shall 29 have become a law.
