Publications

As a reminder, amendments to New York’s whistleblower law went into effect on January 26, 2022, significantly expanding whistleblower protections for employees working in New York. Last month, the New York State Department of Labor released a Notice of Employee Rights, Protections, and Obligations Under Labor Law Section 740, which New York employers are required to conspicuously post in an easily accessible and well-lighted place frequented by employees and applicants for employment. Employers should post the notice now to comply (to the extent they have not done so already).

Under the law, employers are prohibited from taking adverse action against employees who:

• disclose or threaten to disclose to a supervisor or to a public body any activity, policy, or practice that they “reasonably believe” violates any law, rule, or regulation, or that they “reasonably believe” poses a substantial and specific danger to the public health or safety (provided that prior to disclosure to a public body, they make a “good faith effort” to notify the employer of, and afford the employer a reasonable opportunity to correct, such activity, policy, or practice, subject to limited exceptions);

• provide information to, or testify before, any public body conducting an investigation, hearing, or inquiry into any such activity, policy, or practice; or

• object to, or refuse to participate in, any such activity, policy, or practice.

The amendments have sweeping implications. Previously, protected activity applied to actual violations of law and only to the extent that such violations presented a “substantial and specific danger to public health or safety” or “health care fraud.” Now, an actual violation is not required—just a reasonable belief of one.

In addition, the amendments expand, among other things:

• the definition of “employee” to include former employees and natural persons employed as independent contractors;
• the actions considered to be retaliatory (for example, “retaliatory action” now includes, among other things, actions or threats to take actions that would adversely impact a former employee’s current or future employment);
• the statute of limitations – employees now have two years instead of one year to bring a whistleblower claim; and
• the remedies available to employees to include front pay, civil penalties of up to $10,000, and punitive damages (on top of the previously existing remedies of injunctive relief, reinstatement, lost wages and benefits, and attorneys’ fees and costs).

Given the significant expansions, New York employers face an increased risk of a whistleblower retaliation claim whenever they take adverse action against an employee (or independent contractor) who raises a concern about compliance with any law – regardless of whether the compliance issue in any way relates to that employee. In addition to posting the notice, employers should review their existing complaint procedures and ensure managers and supervisors are sufficiently trained to handle complaints. In our experience, employees are more likely to bring claims against employers when they do not feel heard. Employers may also consider implementing a whistleblower policy to demonstrate their commitment to compliance with the law and put them in the best position to defend against whistleblower retaliation claims.

For more information on the topic discussed, contact:

• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158