This bill has been amended

Bill S3862-2013

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities

Provides protection to employees and former employees from retaliatory actions by employers for the reporting of illegal business activities.

Details

Actions

  • Apr 24, 2013: ADVANCED TO THIRD READING
  • Apr 23, 2013: 2ND REPORT CAL.
  • Apr 22, 2013: 1ST REPORT CAL.358
  • Feb 25, 2013: REFERRED TO LABOR

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Labor - Apr 22, 2013
Ayes (10): Savino, Ball, Grisanti, Marcellino, Marchione, Peralta, Addabbo, Dilan, Perkins, Rivera
Ayes W/R (5): DeFrancisco, Gallivan, Martins, Robach, Sanders
Excused (1): Hannon

Memo

BILL NUMBER:S3862

TITLE OF BILL: An act to amend the labor law and the civil service law, in relation to protection of employees and former employees against retaliatory action by employers

PURPOSE: This bill provides greater protections for "whistleblower" employees who disclose information about illegal activities of their employers.

SUMMARY OF PROVISIONS:

Section 1: Amends Labor Law section 740 by clarifying the definition of "law, rule or regulation," to clearly include state, local and federal laws, rules or regulations and state, local and federal judicial and administrative decisions. It clarifies the definition of "public body" to include any department of the executive branch and any division, board or bureau of any public body. Expands the term "retaliatory personnel action" to include the penalization or discrimination against an employee or former employee who "blew the whistle".

This section also specifies that an employee will be protected against retaliatory action for disclosure of employer activity that the employee in good faith reasonably believes has occurred or will occur and in good faith reasonably believes constitutes illegal business activity.

Adds a "good faith" requirement relating to the effort of the employee to bring an illegal activity to the attention of the employer in order to be protected, and creates certain exceptions when such prior to notice to employer is not necessary. It also extends the statute of limitations from one year to two years for bringing a civil action for retaliatory action by an employer. Further, it requires employers to inform their employees of their rights under this section.

Adds a right to a jury trial.

Adds remedies for whistleblowers who suffer impermissible retaliatory personnel actions, and restricts situations when employer is entitled, in court's discretion, to attorney's fees when. successful.

Section 2: Amends Labor Law section 741, which allows a health care employee to seek enforcement of section 741 pursuant to Labor Law section 740, to conform to the above amendments to Labor Law section 740.

Section 3: Amends Civil Service Law 75-b (2) by: A) Adding protections, to create parity for whistleblowers protections for public employees as for private employees under Labor Law 740; and B) Limiting prior notification to employer requirements.

Section 4: Amends Civil Service Law 75-b (3) to include under the definition of retaliatory action, the elimination of a job title that uniquely singles out such employee.

Section 5: Adds a new Civil Service Law 75-b (5) to require all public employers to inform their employees of their whistle blower rights under this Section of law.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: Labor Law § 740 prohibits private employers from firing or taking any other adverse employment action against an employee who refuses to participate in an illegal business activity, or who discloses such illegal activity to a public body, if the illegal activity presents a "substantial and specific danger to the public health or safety." This protection does not apply, however, unless the employee has brought the illegal behavior to the attention of a supervisor and has given the employer an opportunity to correct the behavior. Civil Service Law § 75-b prohibits public employers from firing or taking any other adverse employment action against a public employee who discloses information:

(1) regarding a violation of a law, rule or regulation presenting a substantial and specific danger to the public health and safety; or (2) regarding any action by a public employer which the employee reasonably believes constitutes a violation of any federal, state or local law, rule or regulation. Prior to disclosing the information, the employee must make a good faith effort to inform his or her employer and to give the employer a reasonable time to take appropriate action, unless there is an imminent and serious danger to the public health or safety.

JUSTIFICATION: In 1984, private and public employees in New York State who report illegal or improper activities by their employers are given certain protections under New York's whistleblower protection law. Unfortunately, there are several weaknesses in the current whistleblower law. These weaknesses greatly limit the protections provided to employees. Further, it deters honest employees from revealing illegal activities of their employers, out of the legitimate fear that they will be dismissed or otherwise retaliated against for reporting such violations.

First, Labor Law § 740 only protects employees who disclose illegal activities that present a "substantial and specific danger to the public health or safety." Thus, if an employee becomes aware that his or her employer is knowingly defrauding its customers, or stealing from government authorities, for example, the whistleblower law will provide no protection to the employee.

Second, a private employee who in good faith reasonably believes that his or her employer has engaged in actions which the employee in good faith reasonably believes constitute a violation of law can be terminated for revealing that information to government authorities or the employer, if it turns out that no violation can be proved in court. The Civil Service Law was amended in 1986 to protect public employees who reasonably believe that a violation has occurred, but private employees still do not have that protection.

New York's whistleblower statutes are also not especially effective because they generally do not apply unless the employee has brought the illegal behavior to the attention of a supervisor and has given the employer an opportunity to correct the illegal behavior. Unfortunately, many employees do not know of this requirement, and are

never told by their employers that they can be fired if they do not first tell the employer of the illegal activity. The employer notification requirement set forth in Labor Law 5 740 means that private employees, unlike public employees under Civil Service Law 75-b, can be fired for reporting violations, unreported to the employer, even where such present an imminent and serious threat.

Although Labor Law § 740 prohibits adverse employment actions against private employees who refuse to participate in illegal business activities, Civil Service Law § 75-b does not contain a similar provision. This means that public employees can be fired for refusing to violate the law. Finally, the remedies available to employees under Labor Law § 740 are clearly inadequate, and the right to a jury trial is not provided for.

This bill addresses these numerous defects in the current Whistleblower statutes. It implements certain recommendations made by New York State Law Revision Commission following a five-year study of the law, and enacts, for all employees, protections similar to those extended by Labor Law § 741 to healthcare workers during the 2002 legislative session.

New York State should encourage, not discourage, employees who wish to report violations of law by their employers. Although the "Whistleblower Law" enacted in 1984 was a good first step, experience over the past 20 years has shown that the law is simply inadequate. By making the necessary reforms to strengthen the law, this bill will act as a deterrent to employers who might otherwise engage in illegal activity, will protect the public from such wrongdoing, and will ensure that the honest and law-abiding employees who have the courage to reveal illegal activities are protected against retaliation by their employers.

LEGISLATIVE HISTORY: Similar to Attorney General departmental bills 2007 (A.3487); 2004 legislative session (A.8794), and a similar bill was submitted during the 2001-2002 legislative session. This bill is similar to S.5737/A.7144A (Klein/Benedetto) which passed the Assembly and Senate, but was vetoed by Governor Paterson.

FISCAL IMPLICATIONS: This bill is fiscally neutral.

EFFECTIVE DATE: This act shall take effect 90 days after it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 3862 2013-2014 Regular Sessions IN SENATE February 25, 2013 ___________
Introduced by Sen. KLEIN -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law and the civil service law, in relation to protection of employees and former employees against retaliatory action by employers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 740 of the labor law, as added by chapter 660 of the laws of 1984, paragraph (g) of subdivision 1 as added and paragraph (a) of subdivision 2 as amended by chapter 442 of the laws of 2006, and paragraph (d) of subdivision 4 as added by chapter 24 of the laws of 2002, is amended to read as follows: S 740. Retaliatory personnel action by employers; prohibition. 1. Definitions. For purposes of this section, unless the context specif- ically indicates otherwise: (a) "Employee" means an individual who performs services for and under the control and direction of an employer for wages or other remunera- tion. (b) "Employer" means any person, firm, partnership, institution, corporation, or association that employs one or more employees. (c) "Law, rule or regulation" includes: (I) any duly enacted FEDERAL, STATE OR LOCAL statute or ordinance [or]; (II) any rule or regulation promulgated pursuant to [any federal, state or local] SUCH statute or ordinance; OR (III) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER. (d) "Public body" includes the following: (i) the United States Congress, any state legislature, or any [popu- larly-elected] ELECTED local governmental body, or any member or employ- ee thereof; (ii) any federal, state, or local [judiciary] COURT, or any member or employee thereof, or any grand or petit jury;
(iii) any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof; [or] (iv) any federal, state, or local law enforcement agency, prosecutori- al office, or police or peace officer; (V) ANY FEDERAL, STATE OR LOCAL DEPARTMENT OF AN EXECUTIVE BRANCH OF GOVERNMENT; OR (VI) ANY DIVISION, BOARD, BUREAU, OFFICE, COMMITTEE, OR COMMISSION OF ANY OF THE PUBLIC BODIES DESCRIBED IN SUBPARAGRAPHS (I) THROUGH (V) OF THIS PARAGRAPH. (e) "Retaliatory personnel action" means the discharge, suspension [or demotion of], DEMOTION, PENALIZATION OR DISCRIMINATION AGAINST an employee OR FORMER EMPLOYEE, or other adverse [employment] action taken against an employee OR FORMER EMPLOYEE in the terms and conditions of employment. (f) "Supervisor" means any individual within an employer's organiza- tion who has the authority to direct and control the work performance of [the affected] AN employee; or who has [managerial] authority to take corrective action regarding the [violation of the law, rule or regu- lation] ILLEGAL BUSINESS ACTIVITY of which the employee complains. (g) ["Health care fraud" means health care fraud as defined by article one hundred seventy-seven of the penal law.] "AGENT" MEANS ANY INDIVID- UAL, PARTNERSHIP, ASSOCIATION, CORPORATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER. (H) "ILLEGAL BUSINESS ACTIVITY" MEANS ANY PRACTICE, PROCEDURE, ACTION OR FAILURE TO ACT BY AN EMPLOYER, OR AN EMPLOYEE OR AGENT OF SUCH EMPLOYER, TAKEN IN THE COURSE OF THE EMPLOYER'S BUSINESS, WHETHER OR NOT WITHIN THE SCOPE OF EMPLOYMENT OR AGENCY, THAT IS IN VIOLATION OF ANY LAW, RULE OR REGULATION PUNISHABLE BY IMPRISONMENT OR CIVIL OR CRIMINAL PENALTY. 2. Prohibitions. An employer shall not take any retaliatory personnel action against an employee OR FORMER EMPLOYEE because such employee OR FORMER EMPLOYEE does any of the following WHILE EMPLOYED BY THE EMPLOYER: (a) discloses TO A SUPERVISOR OR A PUBLIC BODY, or threatens to disclose to a [supervisor or to a] public body UNLESS THE ILLEGAL BUSI- NESS ACTIVITY IS REMEDIED, INFORMATION ABOUT an ILLEGAL BUSINESS activ- ity[, 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 safety, or which constitutes health care fraud]; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such [violation of a law, rule or regulation by such employer] ILLEGAL BUSINESS ACTIVITY; or (c) objects to, or refuses to participate in, any [such] ILLEGAL BUSI- NESS activity[, policy or practice in violation of a law, rule or regu- lation]. 3. Application. The protection against retaliatory personnel action provided by PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION TWO OF THIS SECTION SHALL APPLY TO ANY EMPLOYEE WHO IN GOOD FAITH REASONABLY BELIEVES THAT AN ILLEGAL BUSINESS ACTIVITY HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE; PROVIDED HOWEVER THAT THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED BY paragraph (a) of subdivision two of this section pertaining to disclosure to a public body shall not apply to an employee who makes such disclosure to a public body unless the employee
has [brought] MADE A GOOD FAITH EFFORT TO NOTIFY HIS OR HER EMPLOYER BY BRINGING the ILLEGAL BUSINESS activity[, policy or practice in violation of law, rule or regulation] to the attention of a supervisor [of the employer] and has afforded such employer a reasonable opportunity to correct such activity[, policy or practice]. SUCH EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH OR SAFETY; (C) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE ILLEGAL BUSINESS ACTIVITY; (D) SUCH ACTIVITY COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; (E) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN PHYSICAL HARM TO THE EMPLOYEE OR ANY OTHER PERSON; OR (F) THE EMPLOYEE REASONABLY BELIEVES THAT THE SUPERVISOR IS ALREADY AWARE OF THE ILLEGAL BUSINESS ACTIVITY AND WILL NOT CORRECT SUCH ACTIVITY. 4. Violation; remedy. (a) An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within [one year] TWO YEARS after the alleged retaliatory personnel action was taken. (b) Any action authorized by this section may be brought in the county in which the alleged retaliatory personnel action occurred, in the coun- ty in which the complainant resides, or in the county in which the employer has its principal place of business. IN ANY SUCH ACTION, THE PARTIES SHALL BE ENTITLED TO A JURY TRIAL. (c) [It shall be a defense to any action brought pursuant to this section that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section.] EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, A VIOLATION OF THIS SECTION IS ESTABLISHED WHEN THE COMPLAINANT DEMONSTRATES THAT A MOTIVATING FACTOR FOR THE RETALIATORY PERSONNEL ACTION VIOLATES SUBDIVISION TWO OF THIS SECTION. REMEDIES FOR VIOLATION OF SUBDIVISION TWO OF THIS SECTION SHALL BE LIMITED SOLELY TO THOSE PROVIDED IN PARAGRAPHS (E), (F) AND (G) OF SUBDIVISION FIVE OF THIS SECTION IF THE EMPLOYER DEMONSTRATES THAT IT WOULD HAVE TAKEN THE SAME ACTION IN THE ABSENCE OF THE IMPERMISSIBLE MOTIVATING FACTOR. It shall [also] be a defense that the individual was an independent contractor. [(d) Notwithstanding the provisions of paragraphs (a) and (c) of this subdivision, a health care employee who has been the subject of a retal- iatory action by a health care employer in violation of section seven hundred forty-one of this article may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within two years after the alleged retaliatory personnel action was taken. In addition to the relief set forth in that subdivision, the court, in its discretion, based upon a finding that the employer acted in bad faith in the retaliatory action, may assess the employer a civil penalty of an amount not to exceed ten thousand dollars, to be paid to the improving quality of patient care fund, established pursuant to section ninety-seven-aaaa of the state finance law.] 5. Relief. In any action brought pursuant to subdivision four of this section, the court may order relief as follows: (a) [an injunction to restrain continued violation of this section;
(b)]
the reinstatement of the employee to the same position held before the retaliatory personnel action[,] or to an equivalent position, OR FRONT PAY IN LIEU THEREOF; [(c)] (B) the reinstatement of full fringe benefits and seniority rights; [(d)] (C) the compensation for lost wages, benefits and other remuner- ation; [and (e)] (D) COMPENSATORY DAMAGES FOR ECONOMIC LOSS AND FOR EMOTIONAL DISTRESS; (E) the payment by the employer of reasonable costs, disbursements, and attorney's fees; (F) AN INJUNCTION TO RESTRAIN THE EMPLOYER'S CONTINUED VIOLATION OF THIS SECTION WITH RESPECT TO THE EMPLOYEE; AND (G) A CIVIL PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS AND/OR A LIQUIDATED DAMAGES AWARD EQUAL TO AMOUNTS OF DAMAGES PURSUANT TO PARAGRAPHS (C) AND (D) OF THIS SUBDIVISION, IF THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED IN BAD FAITH IN THE RETALIATO- RY ACTION. 6. Employer relief. A court, in its discretion, may also order that reasonable attorneys' fees and court costs and disbursements be awarded to an employer if the court determines that an action brought by an employee under this section was without basis in law or in fact. 7. Existing rights. Nothing in this section shall be deemed to dimin- ish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract[; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law]. 8. PUBLICATION. EVERY EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS FOR EMPLOYMENT. S 2. Subdivision 4 of section 741 of the labor law, as added by chap- ter 24 of the laws of 2002, is amended to read as follows: 4. Enforcement. A health care employee may seek enforcement of this section pursuant to [paragraph (d) of subdivision] SUBDIVISIONS four AND FIVE of section seven hundred forty of this article. S 3. Subdivision 2 of section 75-b of the civil service law, as added by chapter 660 of the laws of 1984 and paragraph (a) as amended by chap- ter 899 of the laws of 1986, is amended to read as follows: 2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE, PENALIZE OR DISCRIMINATE AGAINST, or take other disciplinary or other [adverse personnel action] ACT OF REPRISAL against a public employee regarding the employee's employment because the employee: (I) discloses TO A GOVERNMENTAL BODY OR THREATENS TO DISCLOSE IF THE IMPROPER CONDUCT IS NOT REMEDIED, to a governmental body information[: (i)] regarding a violation of a law, rule or regulation which violation creates [and] OR presents a substantial and specific danger to the public health or safe- ty[; or (ii) which the employee reasonably believes to be true and reasonably believes], OR WHICH constitutes an improper governmental action[. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and
which is in violation of any federal, state or local law, rule or regu- lation]
, OR WHICH COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; (II) PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING AN INVESTIGATION, HEARING OR INQUIRY INTO ANY VIOLATION OR IMPROPER GOVERNMENTAL ACTION; OR (III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY SUCH VIOLATION OR IMPROPER GOVERN- MENTAL ACTION. (b) THE PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL APPLY TO ANY EMPLOYEE WHO IN GOOD FAITH REASONABLY BELIEVES THAT A VIOLATION OR IMPROPER GOVERNMENTAL ACTION HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE. (C) Prior to disclosing information pursuant to SUBPARAGRAPH (I) OF paragraph (a) of this subdivision, an employee shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing author- ity or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety. For the purposes of this subdivision, an employee who acts pursuant to this paragraph shall be deemed to have disclosed information to a govern- mental body under paragraph (a) of this subdivision. NOTIFICATION TO THE APPOINTING AUTHORITY OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION FIVE OF THIS SECTION; (II) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH OR SAFETY; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE APPOINTING AUTHORITY OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE IMPROPER GOVERNMENTAL ACTION; OR (IV) SUCH ACTIVITY COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR. (D) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCEDURE, ACTION OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR AN AGENT OF SUCH EMPLOYER OR EMPLOYEE, WHICH IS UNDERTAKEN IN THE PERFORMANCE OF SUCH AGENT'S OFFICIAL DUTIES, WHETHER OR NOT SUCH ACTION IS WITHIN THE SCOPE OF SUCH PERSON'S EMPLOYMENT, AND WHICH IS IN VIOLATION OF ANY LAW, RULE OR REGULATION REGARDING GOVERNMENTAL ACTION PUNISHABLE BY IMPRISON- MENT OR CIVIL OR CRIMINAL PENALTY. "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE; (II) ANY RULE OR REGULATION PROMULGATED PURSUANT TO ANY SUCH STATUTE OR ORDI- NANCE; OR (III) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER. S 4. Subdivision 3 of section 75-b of the civil service law, as added by chapter 660 of the laws of 1984, is amended to read as follows: 3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disci- plinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably believes THAT SUCH dismissal [or], other disciplinary action OR OTHER PERSONNEL ACTION would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbi- tration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely
on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement. (b) Where an employee is subject to a collectively negotiated agree- ment which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbi- tration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement. (c) [Where] IN ADDITION TO OR IN LIEU OF THE PROCEDURES SET FORTH IN PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION, OR WHERE an employee is not subject to any of the provisions of [paragraph (a) or (b) of this subdi- vision] SUCH PARAGRAPHS, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions AND FOR THE SAME RELIEF as set forth in article twenty-C of the labor law. S 5. Section 75-b of the civil service law is amended by adding a new subdivision 5 to read as follows: 5. EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE THEREOF. SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS FOR EMPLOYMENT. S 6. This act shall take effect on the ninetieth day after it shall have become a law.

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