Prohibits retaliatory personnel action by an employer against an employee who discloses or threatens to disclose an activity, policy or practice of the employer that is in violation of law; removes requirement that such violation of law present a substantial and specific danger to public health or safety.

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S1641-2011 Actions

• Jan 4, 2012: REFERRED TO LABOR
• Jan 10, 2011: REFERRED TO LABOR

S1641-2011 Memo

BILL NUMBER:S1641

TITLE OF BILL:
An act
to amend the labor law, in relation to prohibiting certain retaliatory
personnel action by employers

PURPOSE OR GENERAL IDEA OF BILL:
To protect individuals that disclose acts of employers that violate
the law, while maintaining the "substantial and specific danger to
public health or safety" requirement for the disclosure of acts that
violate rules or regulations.

SUMMARY OF SPECIFIC PROVISIONS:
Paragraph (a) an1ends section 740 of the labor law by limiting the
"substantial and specific danger to public health or safety"
requirement to only the disclosure of violations of rules and
regulations.

Paragraph (a-1) adds a new sub-section to section 740 of the labor law
that protects employees that disclose to a supervisor or public body
activities, policies, or practices of their employer that violate the
law.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
The current law protects employees that disclose - to their
supervisors or a public body - only those activities, policies, or
practices of their employer that present a substantial and specific
danger to the public health or safety.

This bill would amend the current law so it would protect the
disclosure - to an employee's supervisor or a public body - of all
activities, policies, or practices of an employer that violates the
law.

However, the bill would retain the "substantial and specific danger to
public health or safety" requirement for the disclosure of
activities, policies, or practices of an employer to a supervisor or
a public body that violate a rule or regulation.

JUSTIFICATION:
Scandals such as Enron and at the New York Stock Exchange have
spotlighted a recent trend of misconduct by businesses and
organizations nationwide. As an attempt to prevent such scandals and
ensure that the law is enforced, provisions must be taken to protect
individuals who disclose information to the authorities about the
illegal acts of their employers.

The present law protects only those disclosures that create and
present a substantial and specific danger to the public health or
safety. While this provision is important and necessary to the
enforcement of rules and regulations, it fails to protect individuals
that make good faith disclosures regarding illegal acts that do not
pertain to public health or safety. This consequence only frustrates
the purpose for such a law and restricts the enforcement of several
laws designed to protect the people.


For example, the Court of Appeals denied an action by an employee, who
alleged her employer was billing the City of New York for the
services of employees that did not exist, because fraud does not
involve a "substantial and specific danger to the public health or
safety." REMBA V. FEDERATION EMPLOYMENT AND GUIDANCE SERVICE, 149
A.D.2d 131 (lst Dept. 1989), aff'd 76 N.Y.2d 801.

In addition, a mental health aide was not protected under the present
law when she reported the rape of a patient to the authorities,
because the act only affected the health and safety of a single
individual and not the public at large.
KERN V. DEPAUL MENTAL HEALTH SERVICES, INC., 139 Misc. 2d 970 (Monroe
S.Ct. 1988), aff'd 152 A.D.2d 957 (4th Dept.
1989).

Furthermore, an action is in current litigation on behalf of two
computer technicians who were fired from their jobs when they
reported to police 150,000 images of child pornography that they had
found on the computer of a New York Law School professor. While this
matter has yet to be litigated, it is doubtful given past decisions
that the present law will protect either employee.

Because of the law's limited application, employers can still seek
retribution against their employees for disclosing information about
many illegal act and/or practices without any recourse on behalf of
the employee. This amendment is necessary to ensure that the laws of
New York are enforced and the citizens who report these acts are
protected.

LEGISLATIVE HISTORY:
S.2155 of 2008
02/01/08 Referred to Labor
S.5975 of 2009
06/19/09 REFERRED TO RULES
01/06/10 REFERRED TO LABOR

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

S1641-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    1641

                         2011-2012 Regular Sessions

                              I N  SENATE

                              January 10, 2011
                                 ___________

  Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
    printed to be committed to the Committee on Labor

  AN ACT to amend the labor law, in relation to prohibiting certain retal-
    iatory personnel action by employers

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1. Paragraph (a) of subdivision 2 of section 740 of the labor
  law, as amended by chapter 442 of the laws of 2006, is amended and a new
  paragraph (a-1) is added to read as follows:

    (a) discloses, or threatens to disclose to a supervisor or to a public
  body an activity,  policy  or  practice  of  the  employer  that  is  in
  violation  of  [law,]  rule  or  regulation  which violation creates and
  presents a substantial and specific danger to the public health or safe-
  ty, or which constitutes health care fraud;
    (A-1) DISCLOSES, OR THREATENS TO DISCLOSE TO  A  SUPERVISOR  OR  TO  A
  PUBLIC  BODY  AN ACTIVITY, POLICY OR PRACTICE OF THE EMPLOYER THAT IS IN
  VIOLATION OF LAW;
    S 2. This act shall take effect immediately.





   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD06120-01-1