S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3863
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by M. of A. PRETLOW -- read once and referred to the Commit-
   tee on Labor
 
 AN ACT to amend the labor law and the civil service law, in relation  to
   protection of 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:
   § 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;  (III) ANY INTERNAL RULE PROMULGATED BY THE EMPLOYER PURSUANT
 TO ANY STATUTE OR ORDINANCE; OR  (IV)  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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06695-01-9

 A. 3863                             2
 
   (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 ANY other [adverse employment action] ACT OF REPRISAL taken
 against an 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] IMPROPER 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.
   (H)  "AGENT"  MEANS  ANY  INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPO-
 RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
   (I) "IMPROPER 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, WHICH IS IN VIOLATION OF ANY
 LAW, RULE OR REGULATION.
   2. Prohibitions. An employer shall not take any retaliatory  personnel
 action against an employee because such employee does any of the follow-
 ing:
   (a)  discloses,  or  threatens  to disclose to a supervisor [or to a],
 AGENT, INTERNAL AGENCY, OR TO THE public  [body]  INFORMATION  ABOUT  an
 IMPROPER  BUSINESS 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];
   (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] IMPROPER BUSINESS  ACTIV-
 ITY; or
   (c) objects to, or refuses to participate in any [such] IMPROPER 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 [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  the
 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] SUBDIVISION TWO OF THIS SECTION SHALL APPLY  TO  ANY  EMPLOYEE
 WHO IN GOOD FAITH REASONABLY BELIEVES THAT AN IMPROPER BUSINESS ACTIVITY
 HAS  OCCURRED  OR  WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN
 GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
   4. Violation; remedy. (a) An employee who has been the  subject  of  a
 retaliatory  personnel action in violation of this section may institute

 A. 3863                             3
 
 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.
   (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. It
 shall also be a defense that the individual was an independent  contrac-
 tor.
   (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  FIVE OF THIS SECTION, the court, in its discretion,
 based upon a finding that the employer acted in bad faith in the retali-
 atory 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] PATIENT SAFETY CENTER ACCOUNT,  established  pursuant
 to  section  [ninety-seven-aaaa]  NINETY-SEVEN-IIII 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;
   [(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;
   (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 THIRTY THOUSAND
 DOLLARS, IF THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER  ACTED
 IN BAD FAITH IN THE RETALIATORY 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 accord-
 ance with this section shall be deemed a waiver of the rights and  reme-
 dies  available  under  any other contract, collective bargaining agree-
 ment, law, rule or regulation or under the common law.
   7.  PUBLICATION.  EVERY  EMPLOYER  SHALL  INFORM  EMPLOYEES  OF  THEIR
 PROTECTIONS,  RIGHTS  AND  OBLIGATIONS  UNDER THIS SECTION, BY POSTING A

 A. 3863                             4
 
 NOTICE THEREOF.  SUCH NOTICES SHALL BE POSTED  CONSPICUOUSLY  IN  EASILY
 ACCESSIBLE  AND  WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES
 AND APPLICANTS FOR EMPLOYMENT.
   §  2. Section 741 of the labor law, as added by chapter 24 of the laws
 of 2002 and paragraph (b) of subdivision 1 as amended by chapter 505  of
 the laws of 2003, is amended to read as follows:
   §  741.  Prohibition;  health  care  employer  who penalizes employees
 because of complaints of employer violations. 1. Definitions. As used in
 this section, the following terms shall have the following meanings:
   (a) "Employee" means any person who performs health care services  for
 and  under  the  control and direction of any public or private employer
 which provides health care services for wages or other remuneration.
   (b) "Employer" means any partnership,  association,  corporation,  the
 state,  or  any  political  subdivision of the state which: (i) provides
 health care services in a facility licensed pursuant to article  twenty-
 eight  or thirty-six of the public health law; (ii) provides health care
 services within a primary or  secondary  public  or  private  school  or
 public or private university setting; (iii) operates and provides health
 care  services  under  the  mental hygiene law or the correction law; or
 (iv) is registered with the department of education pursuant to  section
 sixty-eight hundred eight of the education law.
   (c)  "Agent"  means  any  individual, partnership, association, corpo-
 ration, or group of persons acting on behalf of an employer.
   (d) "Improper quality of patient care" means, with respect to  patient
 care,  any  practice, procedure, action or failure to act of an employer
 which violates any law, rule, regulation or declaratory  ruling  adopted
 pursuant to law, where such violation relates to matters which may pres-
 ent  a  substantial  and specific danger to public health or safety or a
 significant threat to the health of a specific patient.
   (e) "Public body" means:
   (1) the United States Congress, any state legislature, or any  elected
 local governmental body, or any member or employee thereof;
   (2) any federal, state or local court, or any member or employee ther-
 eof, any grand or petit jury;
   (3)  any  federal, state or local regulatory, administrative or public
 agency or authority, or instrumentality thereof;
   (4) any federal, state or local law enforcement agency,  prosecutorial
 office, or police or peace officer;
   (5)  any  federal, state or local department of an executive branch of
 government; or
   (6) any division, board, bureau, office, committee  or  commission  of
 any of the public bodies described in subparagraph one, two, three, four
 or five of this paragraph.
   (f)  "Retaliatory  action" means the discharge, suspension, demotion[,
 penalization] or discrimination against an employee, or  [other  adverse
 employment action taken] ANY ACT OF REPRISAL against an employee [in the
 terms and conditions of employment].
   (g)  "Supervisor"  means  any person within an employer's organization
 who has the authority to direct and control the work performance  of  an
 employee,  or  who has the authority to take corrective action regarding
 the violation of a law, rule or regulation to which an employee  submits
 a complaint.
   (H) "LAW, RULE OR REGULATION" INCLUDES:
   (1) ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE;
   (2)  ANY  RULE  OR  REGULATION  PROMULGATED PURSUANT TO ANY STATUTE OR
 ORDINANCE;

 A. 3863                             5
 
   (3) ANY INTERNAL RULE PROMULGATED BY  THE  EMPLOYER  PURSUANT  TO  ANY
 STATUTE OR ORDINANCE; OR
   (4) ANY JUDICIAL OR ADMINISTRATIVE DECISION, RULING OR ORDER.
   2.  Retaliatory action prohibited. Notwithstanding any other provision
 of law, no employer shall take retaliatory action against  any  employee
 because the employee does any of the following:
   (a)  discloses or threatens to disclose to a supervisor, AGENT or to a
 public body an activity, policy or practice of  the  employer  or  agent
 that  the  employee,  in  good  faith,  reasonably  believes constitutes
 improper quality of patient care; [or]
   (b) PROVIDES INFORMATION TO, OR  TESTIFIES  BEFORE,  ANY  PUBLIC  BODY
 CONDUCTING  AN  INVESTIGATION,  HEARING OR INQUIRY INTO ANY VIOLATION OR
 ACTION DESCRIBED IN SUBPARAGRAPH (I) OF PARAGRAPH (A) OF SUBDIVISION TWO
 OF SECTION SEVENTY-FIVE-B OF THE CIVIL SERVICE LAW; OR
   (C) objects to, or refuses to participate in any activity,  policy  or
 practice  of  the  employer  or  agent that the employee, in good faith,
 reasonably believes constitutes improper quality of patient care.
   3. [Application. The protection against retaliatory  personnel  action
 provided  by  subdivision two of this section shall not apply unless the
 employee has brought the improper quality of patient care to the  atten-
 tion of a supervisor and has afforded the employer a reasonable opportu-
 nity  to  correct  such  activity,  policy or practice. This subdivision
 shall not apply to an action or failure to act  described  in  paragraph
 (a)  of  subdivision  two  of this section where the improper quality of
 patient care described therein presents an  imminent  threat  to  public
 health or safety or to the health of a specific patient and the employee
 reasonably  believes  in good faith that reporting to a supervisor would
 not result in corrective action.
   4. Enforcement. A health care employee may seek  enforcement  of  this
 section  pursuant  to paragraph (d) of subdivision four of section seven
 hundred forty of this article.
   5.] Relief. In any court action brought pursuant to  this  section  it
 shall be a defense that the personnel action was predicated upon grounds
 other  than  the  employee's  exercise  of  any rights protected by this
 section.
   § 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 OR THREATENS TO DISCLOSE to a  SUPERVISOR,  governmental
 body [information:(i) regarding a violation of a law, rule or regulation
 which  violation  creates and presents a substantial and specific danger
 to the public health or safety; or (ii) which  the  employee  reasonably
 believes  to  be  true and reasonably believes], AGENCY OR TO THE PUBLIC
 ANY CONDUCT WHICH constitutes an improper governmental action. ["Improp-
 er 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 regulation.]
   (II) PROVIDES INFORMATION TO, OR TESTIFIES  BEFORE,  ANY  PUBLIC  BODY
 CONDUCTING  AN  INVESTIGATION,  HEARING  OR  INQUIRY  INTO  ANY IMPROPER
 GOVERNMENTAL ACTION; OR

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   (III) OBJECTS TO, OR REFUSES TO PARTICIPATE IN, ANY  IMPROPER  GOVERN-
 MENTAL ACTION.
   THE  PROTECTION AGAINST RETALIATORY PERSONNEL ACTION PROVIDED IN PARA-
 GRAPH (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 EMPLOY-
 EE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE.
   (C)(I) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE,  PROCE-
 DURE,  ACTION  OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR AN
 AGENT OF SUCH EMPLOYER OR EMPLOYEE, WHETHER OR NOT SUCH ACTION IS WITHIN
 THE SCOPE OF SUCH PERSON'S EMPLOYMENT, WHICH IS IN VIOLATION OF ANY LAW,
 RULE OR REGULATION.
   (II) "LAW, RULE OR REGULATION" INCLUDES: (A) ANY DULY ENACTED FEDERAL,
 STATE OR LOCAL STATUTE OR ORDINANCE; (B) ANY RULE OR REGULATION  PROMUL-
 GATED  PURSUANT TO ANY SUCH STATUTE OR ORDINANCE; OR (C) ANY JUDICIAL OR
 ADMINISTRATIVE DECISION, RULING OR ORDER.
   § 4. Paragraph (c) of 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:
   (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.
   § 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
 HIGHLY VISIBLE AREAS FREQUENTLY VISITED BY EMPLOYEES AND APPLICANTS  FOR
 EMPLOYMENT.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.