Effective January 26, 2022, amendments to New York’s Whistleblower Law dramatically expand the scope of protected activity that triggers anti-retaliation protections, as well as type of actions that may be considered retaliatory under the law.
Broadened Scope of Protected Activity
Previously, the Whistleblower Law only prohibited employers from taking any retaliatory action against an employee because the employee reported or threatened to report actual violations of law which presented a substantial and specific danger to the public health or safety.
The Whistleblower Law will now prohibit employers from taking any retaliatory action against an employee because such employee discloses or threatens to disclose an activity, policy or practice of the employer (an “Employment Practice”) that the employee reasonably believes is in violation of a law, rule or regulation or poses a substantial and specific danger to the public health or safety.
The term “law, rule or regulation” has also been expanded to include: (i) any duly enacted federal, state or local statute, ordinance or executive order, (ii) any rule or regulation promulgated pursuant to a statute, ordinance or executive order, or (iii) any judicial or administrative decision ruling or order.
Employers remain prohibited from taking any retaliatory action against an employee because the employee provides information to, or testifies before, any public body conducting an investigation or inquiry into an Employment Practice, or objects to or refuses to participate in an Employment Practice.
Lower Threshold for Protected Activity
Previously, employees were required to report violations to their employer before disclosing violations to a public body in order to be protected from retaliation.
The amended Whistleblower Law requires only that the employee make a “good faith effort” to notify their employer of a violation to be protected from retaliation. Further, no notification is necessary in the following situations:
- There is an imminent and serious danger to the public health or safety;
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The employee reasonably believes that reporting to the supervisor would result in destruction of evidence or other concealment of the Employment Practice;
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Such Employment Practice could reasonably be expected to lead to endangering the welfare of a minor;
- The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or
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The employee reasonably believes that the supervisor is already aware of the Employment Practice and will not correct such Employment Practice.
Expanded Definition of Retaliatory Action
“Retaliatory action” means an adverse action taken by an employer or its agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee for exercising their rights under the Whistleblower Law, including:
- Adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment including but not limited to discharge, suspension, or demotion;
- Actions or threats to take such actions that would adversely impact a former employee’s current or future employment; or
- Threatening to contact or contacting the United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or that of an employee’s family or household member to a federal, state or local agency.
Expanded Protection to Former Employees and Independent Contractors
In addition to current employees, the Whistleblower Law will now protect former employees and independent contractors from retaliation.
Posting Requirement
Employers are now required to inform employees of their protections, rights and obligations pursuant to the Whistleblower Law by posting a notice in the workplace in a conspicuous, easily accessible and well-lit place customarily frequented by employees and applicants for employment. We anticipate the New York State Department of Labor will publish a model notice or poster in advance of January 26.
Expansion of Remedies
The statute of limitations for bringing a claim under the Whistleblower law will be extended from one year to two years, and plaintiffs will be entitled to a jury trial.
Further, in addition to the already-available remedies of injunction, reinstatement, compensation for lost wages, costs and attorneys’ fees, the amended Whistleblower Law provides for front pay in lieu of reinstatement, punitive damages if the violation was willful, malicious or wanton, and increased civil penalties.
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
