On October 28, 2021, Governor Kathy Hochul signed legislation that will significantly expand the scope of whistleblower protection for employees in the State of New York. The law goes into effect on January 26, 2022. Here are highlights of the more significant expansions:
- Covered Individuals: Former employees and independent contractors will now be included in the scope of individuals protected under the law.
- Scope of Claims: Employees will now be protected if they disclose or threaten to disclose an activity, policy, or practice of the employer that the employee “reasonably believes” is a violation of a law, rule, or regulation, or “poses a substantial and specific damage to the public health and safety.” Whereas, prior to this amendment, employees were required to show an “actual violation” of the law.
- Notifications to Employer: Prior to the expansion of this law, employees were only provided whistleblower protection if they notified their employer before making a disclosure to a public body. Under the amended law, there will now be whistleblower protection for employees who make a “good faith effort” to notify the employer prior the disclosure. In addition, employer notification is not required when “there is an imminent and serious danger to the public health or safety; the employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy or practice; such activity, policy or 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 the employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy or practice.”
- Retaliatory Action: The whistleblower protection law will now expand “retaliatory action” to include “actions or threats to take such actions that would adversely impact a former employee’s current or future employment.”
- Remedies: The law will now include remedies such as front pay in lieu of reinstatement, a civil penalty not to exceed $10,000.00, and punitive damages if the “violation was willful, malicious or wanton.”
- Publication: The new law also imposes publication requirements on employers. Specifically, “every employer shall inform employees of their protections, rights and obligations” under the law “by posting a notice” which “shall be posted conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”
The expansion of this law is an important victory for workers in the State of New York. With its increased scope and remedies, this new law should give rise to increased whistleblower litigation in New York.
If you have any questions about whistleblower protection and/or the expansion of this law, please do not hesitate to contact Curcio Mirzaian Sirot LLC.
* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice at Curcio Mirzaian Sirot LLC.