S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3603
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2023
                                ___________
 
 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 amended by chapter 522  of
 the laws of 2021, is amended to read as follows:
   §  740.  Retaliatory action by employers; prohibition. 1. Definitions.
 For purposes of this section, unless the context specifically  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, including former employees, or natural persons employed  as  inde-
 pendent  contractors  to  carry out work in furtherance of an employer's
 business enterprise who are not themselves employers.
   (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 executive order; (ii) any rule or
 regulation promulgated pursuant to such statute or ordinance  or  execu-
 tive  order;  [or]  (iii)  ANY INTERNAL RULE PROMULGATED BY THE EMPLOYER
 PURSUANT TO ANY STATUTE OR ORDINANCE; OR (IV) any judicial  or  adminis-
 trative decision, ruling or order.
   (d) "Public body" includes the following:
   (i)  the United States Congress, any state legislature, or any elected
 local governmental body, or any member or employee thereof;
   (ii) any federal, state, or local 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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08368-01-3
              

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   (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 action" means an adverse action taken by an  employer
 or  his  or  her agent to discharge, threaten, penalize, or in any other
 manner discriminate against any employee or former  employee  exercising
 his  or  her rights under this section, including (i) adverse employment
 actions or threats to take such adverse employment  actions  against  an
 employee  in  the  terms  of  conditions of employment including but not
 limited to discharge, 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  United States immigration authorities or otherwise reporting
 or threatening to report an employee's suspected  citizenship  or  immi-
 gration  status or the suspected citizenship or immigration status of an
 employee's family or household member, as defined in subdivision two  of
 section  four  hundred  fifty-nine-a  of  the  social services law, to a
 federal, state, or local agency.
   (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)  "AGENT"  MEANS  ANY  INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPO-
 RATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.
   (H) "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  action
 against  an  employee, whether or not within the scope of the employee's
 job duties, because such employee does any of the following:
   (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 the
 employee reasonably believes is in violation of law, rule or  regulation
 or that the employee reasonably believes poses a substantial and specif-
 ic danger to the public health or safety];
   (b)  provides  information  to,  or  testifies before, any public body
 conducting an investigation, hearing or inquiry into any such [activity,
 policy or practice by such employer] IMPROPER BUSINESS ACTIVITY; or
   (c) objects to, or refuses to participate in any [such] IMPROPER BUSI-
 NESS activity[, policy or practice].
   3. Application. The protection against retaliatory action provided  by
 [paragraph  (a) of subdivision two of this section pertaining to disclo-
 sure to a public body shall not apply to  an  employee  who  makes  such
 disclosure  to  a  public body unless the employee has made a good faith
 effort to notify his or her employer by bringing the activity, policy or
 practice to the attention of  a  supervisor  of  the  employer  and  has
 afforded  such  employer a reasonable opportunity to correct such activ-
 ity, policy  or  practice.  Such  employer  notification  shall  not  be
 A. 3603                             3

 required  where:  (a)  there  is  an  imminent and serious danger to the
 public health or safety;  (b)  the  employee  reasonably  believes  that
 reporting to the supervisor would result in a destruction of evidence or
 other  concealment  of the activity, policy or practice; (c) such activ-
 ity, policy or practice could reasonably be expected to lead  to  endan-
 gering the welfare of a minor; (d) the employee reasonably believes that
 reporting to the supervisor would result in physical harm to the employ-
 ee or any other person; or (e) the employee reasonably believes that the
 supervisor is already aware of the activity, policy or practice and will
 not  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  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 two years after the alleged
 retaliatory action was taken.
   (b) Any action authorized by this section may be brought in the county
 in which the alleged retaliatory action occurred, in the county 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  retaliatory action was predicated upon grounds other
 than the employee's exercise of any rights protected by this section.
   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 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;
   [(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;
   (G) a civil penalty of an amount not to exceed [ten]  THIRTY  thousand
 dollars  IF  THE COURT, IN ITS DISCRETION, FINDS THAT THE EMPLOYER ACTED
 IN BAD FAITH IN THE RETALIATORY ACTION; and/or
   [(g)] (H) the payment by the employer  of  punitive  damages,  if  the
 violation was willful, malicious or wanton.
   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.
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   [8.] 7. 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.
   §  2. Section 741 of the labor law, as added by chapter 24 of the laws
 of 2002, subdivisions 1, 2 and 3 as amended by chapter 117 of  the  laws
 of  2020, subdivision 4 as amended and subdivision 6 as added by chapter
 522 of the laws of 2021, 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) "Improper quality of workplace  safety"  means,  with  respect  to
 employees,  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  present  an unsafe workplace environment or risk of employee safety
 or a significant threat to the health of a specific employee.
   (f) "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.
   (g)  "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].
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   (h)  "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.
   (I) "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;
   (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, to a news media outlet, or to a social media  forum  avail-
 able  to  the  public  at  large, 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 improper quality of
 workplace safety; [or]
   (b) 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  or
 improper quality of workplace safety[.]; OR
   (C)  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.
   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 or improper
 quality of workplace safety to the attention of  a  supervisor  and  has
 afforded the employer a reasonable opportunity 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 or improper quality
 of workplace safety described therein presents  an  imminent  threat  to
 public  health  or  safety  or  to  the  health of a specific patient or
 specific health care employee 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 subdivisions four and five 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.
   [6.]  4.  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.
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   §  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
   (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.
   (B)(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.