Prohibits retaliatory personnel action by an employer against an employee who discloses or threatens to disclose an activity, policy or practice of the employer or a fellow employee that is in violation of law; removes requirement that such violation of law present a substantial and specific danger to public health or safety.
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 or fellow employees 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) amends 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 or other employees that violates 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 or other employee 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." REMBAV. FEDERATION EMPLOYMENT AND GUIDANCE SERVICE, 149 A.D.2d 131 (1st Dept. 1989), affd 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), affd 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.61 of 2009 01/07/09 Referred to Labor 05/18/09 1st Report Cal. 342 05/19/09 2nd Report Cal. 05/20/09 Advanced to Third Reading 07/16/09 Committed to Rules 01/06/10 Referred to Labor S.1617 of 2011 01/10/11 Referred to Labor 01/04/12 Referred to Labot
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 660 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________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 OR ANOTHER EMPLOYEE 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. LBD01797-01-3