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Expanded Protection For New York Whistleblowers

 

Whistleblower law in New York was abysmal.  The only people who seemed to be protected were folks who warned the public that a nuclear power plant was about to blow up. Anything less than a “substantial and specific” public safety threat was not covered; thus, employees who reported their employers for misconduct such as cooking the books did not get job protection, even when the boss went to jail.[1]

Enter the amended NY Labor Law Section 740, which takes effect on January 1, 2022. Here’s what the amendments do:

 

  • There is no longer a requirement that the reported violation constitute a substantial specific public safety threat – although reporting such a threat is still a protected activity.
  • Employees are protected from retaliation if they report conduct that they reasonably believe constitutes a violation of a law, rule, or regulation. What constitutes a “reasonable belief” remains to be seen, so it’s wise to make sure you have a good understanding of the violation you’re reporting before making the complaint.
  • Employees must make a good faith effort to notify the employer of the violation, giving the employer the chance to fix the problem. But that notification requirement is eased in situations where there is imminent or serious danger to public safety, the employee reasonably believes that the employer would take steps to conceal the activity (such as shredding incriminating evidence), the report would result in physical harm or result in endangerment of a minor, or the employee reasonably believes that the employer is already aware of the violation and will not correct it.
  • The amendments extend the statute of limitations to two years from the date of the violation, and entitle the parties to a jury trial.
  • Particularly bad conduct can result in an award of punitive damages.
  • Employers are required to post a notice of employees’ whistleblower rights in a conspicuous spot in the workplace.

 

Fair warning:  Employees who bring frivolous claims may be ordered to pay the employer’s attorneys’ fees and costs – which often amount to six figures.  So before you file a big court claim, it’s a good idea to speak to a workers’ rights attorney in your jurisdiction.

 

 

[1] Healthcare workers had slightly better protections under NYLL 741.

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