Effective January 22, 2022, New York State’s amended whistleblower law significantly expands section 740 of the New York Labor Law to provide greater protections to whistleblowers against employer retaliation.
Under the recent amendments, employees include former employees and independent contractors. By including former employees, the new law protects employees against a former employer’s retaliatory actions that may harm current and future employment prospects.
An employer is prohibited from retaliating against an employee who reports or threatens to report employer activity, policy, or practice that the employee reasonably believes is in violation of a law, rule, or regulation or poses a substantial and specific danger to public health or safety. An employee must report this to a supervisor or public body to be protected under the law. “[L]aw, rule, or regulation” includes any state, local, and federal law, rule, and regulation, as well as any judicial and administrative decisions. Protected employees include those whose job duties may already include disclosure of information.
Before reporting to a public body, an employee must make a “good faith effort” to notify their employer by bringing the activity, policy, or practice to the attention of a supervisor of the employer and has given such employer a reasonable opportunity to correct such activity, policy, or practice. An employee does not need to notify the employer, if they reasonably believe (1) there is an imminent and serious danger to public health or safety; (2) the employer would destroy or conceal evidence of activity; (3) the activity could reasonably be expected to endanger welfare of a minor; (4) notifying a supervisor would lead to harm to the employee or another; and/or (5) the supervisor is already aware of such activity and has not corrected it.
Retaliatory action by the employer includes actions to discharge, threaten, penalize, suspend, demote, or “in any other manner” to discriminate against an employee. Adverse actions can include actions which negatively impacts current or future employment or threatening to contact or contacting United States immigration authorities regarding citizenship status.
The statute of limitations to bring a claim before the court has increased from one to two years. This means an employee has two years after an employer retaliates to file a claim. Employees can seek injunctive relief, reinstatement, compensation for lost wages and benefits, civil penalties not to exceed ten thousand dollars, and compensation for emotional distress when bringing a claim. Retaliation claims under the new amended law are now entitled to be heard before a jury. The law also provides that employees receive notice of the law and its protections.