Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection. That will change when the amendment goes into effect on January 26, 2022.
New Protected Activities
In the past, to be protected by New York’s Whistleblower Law, an employee had to prove he or she objected about (1) an action of the employer that actually violated a law, rule, regulation; and (2) the violation created a substantial and specific danger to public health or safety.
In contrast, after the amendment an employee only has to prove he or she reasonably believes (1) the employer’s activity, policy or practice was violating the law or a rule or regulation; and (2) the activity poses a substantial and specific danger to public health or safety. The amendment also clarifies that an employee is protected from retaliation whether or not he was acting within the scope of his or her job duties.
In addition, previously an employee who reported a violation to the government would not be protected from retaliation unless he or she first reported it to a supervisor, and gave the employer an opportunity to correct it. Now, there are numerous exceptions to that requirement, including if:
- The activity, policy or practice poses an imminent and serious danger to public health or safety, or reasonably could be expected to endanger the welfare of a minor;
- The employee reasonably believes the supervisor already is aware of the activity, policy or practice, but will not correct it;
- The employee reasonably believes reporting the activity, policy or practice to a supervisor will lead to physical harm to the employee or someone else; or
- The employee reasonably believes reporting the activity, policy or practice to a supervisor will result in evidence being destroyed, or the employer concealing its actions.
Protection for More Workers
In addition to protecting current employees, the Whistleblower Law will protect former employees, as well as independent contractors who are hired to “carry out work in furtherance of an employer’s business enterprise.”
More Forms of Retaliation Prohibited
The statute already prohibited employers from retaliating against an employee by firing, demoting, suspending, or taking other adverse action against him or her with respect to the terms of conditions of employment.
The amended statute now expressly makes it unlawful to “threaten, penalize, or in any manner discriminate against any employee or former employee exercising his or her rights under” it, including but not limited to:
- Firing, suspending or demoting the employee; or
- Taking an action to impact the employee’s current or future employment, presumably including g providing a negative job reference; or
- Contacting immigration authorities, or seeking to jeopardize the citizenship or immigration status of the employee or his or her family, or anyone else living with the employee; or
- Threatening to take any such action.
Further, the statute now makes it clear that an employee who is fired in violation of the statute can receive front pay (meaning future lost wages) as an alternative to being reinstated to his or her former job.
It also states that employees can recover punitive damages, meaning damages to punish the employer, if the employer’s violation of the statute was “willful, malicious or wanton.”
Longer Statute of Limitations
Moreover, instead of a one year statute of limitations, the amended law now has a two year statute of limitations.
Right to a Jury Trial
Likewise, the Whistleblower Law now specifically entitles an employee who brings an action under the Whistleblower Law to a jury trial.
New Posting Requirement
Finally, the new statute requires all employers to conspicuously post a notice about the law.
You can read the full text of the amendment, S4394A/A5144, here.