Gov. Hochul Expands Whistleblower Protections for Workers in New York

Governor Kathy Hochul recently signed legislation amending Section 740 of the New York Labor Law that significantly expands protections for whistleblowers in the workplace. The amendment will take effect on January 26, 2022, and when it does, New York will have one of the strongest whistleblower protection laws in all fifty states. The amended Section 740 includes the following provisions:

Covered Whistleblowers: Expands the definition of “covered whistleblowers” from only current employees to former employees and independent contractors.

Reasonable Belief Standard: Currently, the law only protects employees who disclose activity that actually violates a law, rule, or regulation and which creates a substantial and specific danger to public health or safety. The amended Section 740 establishes a new “reasonable belief” standard that protects any covered whistleblower who discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice that the covered whistleblower reasonably believes is in violation of law, rule or regulation, or poses a substantial and specific danger to the public health or safety.

The Reasonable Belief Standard means that beginning January 26, workers will be protected if they report what they reasonably believe to be a violation of law, rule, or regulation, or report an activity that they reasonably believe poses a substantial and specific danger to the public health or safety, even if it turns out that no actual violation or danger exists.

Prohibited Retaliatory Conduct: The amended Section 740 prohibits employers from discharging, threatening, penalizing, or discriminating against in any other way a covered whistleblower for exercising his or her rights under the law. This includes (i) adverse employment actions or threats to take adverse employment actions against an employee in the terms and conditions of employment including but not limited to termination, suspension, or demotion; (ii) actions or threats to take such actions that would adversely impact a former employee’s current or future employment; or (iii) threatening to contact or contacting U.S. immigration authorities or otherwise reporting or threatening to report a covered whistleblower’s suspected citizenship or immigration status or the suspected citizenship or immigration status of a covered whistleblower’s family or household member.

Remedies: Currently, the law allows successful plaintiffs to obtain injunctive relief and reinstatement as well as recover lost wages, benefits, and other remuneration and attorneys’ fees. The amended law will also allow for the recovery of front pay in lieu of reinstatement and punitive damages. Moreover, it authorizes courts to impose a civil penalty of up to $10,000.

Notice Requirement: The amended law requires employers to inform employees of their protections, rights, and obligations under the law by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

If you have any questions about your protections against whistleblower retaliation at work, or if you feel you have been retaliated against for blowing the whistle on your employer (including raising the flag on suspicious conduct internally), contact the Workers’ Rights Hotline at (607) 269-0409. You can also send a 100% anonymous, encrypted message to the New York State Attorney General’s Office through their secure Whistleblower Portal.

Source: Lexology, Phillips Lytle LLP