Updates to New York State Whistleblower Law

On October 28, 2021, Governor Kathy Hochul signed an amendment expanding the New York Whistleblower Law—§740 of the Labor Law. This amendment increases workplace protections against retaliation for private-sector employees while increasing employer liability. The law applies to all private employers in New York State, regardless of number of employees.

Before this amendment, current employees had protection if they faced retaliation after reporting violations of policies that were “specific and substantial” threats to public health and safety. The violation had to be in direct violation of a law, rule, or regulation. The new amendment expands protections for employees by clarifying that if an employee reasonably believes there is a violation, then they are protected from any retaliatory actions taken by an employer, even if there was no violation. The amendment also extends the protection to former employees and independent contractors.

It is no longer a strict requirement for employees to report the violation to employers before bringing the issue to a public body; rather, they must simply make a “good faith” effort to contact their employer about the violation before reporting to a public body. There are also instances where employees do not need to notify their employer at all, including when:

• there is an imminent danger to public health and safety;
• employees reasonably believe that reporting the violation to a supervisor would lead to the destruction of evidence/concealment of activity;
• employees reasonably believe that reporting the claim to a supervisor could reasonably be expected to lead to endangerment of a minor, physical harm to the employee, or physical harm to another person; and
• employees reasonably believe their supervisor already knows of the activity/practice/policy and will not correct the violation. 

Prohibited retaliatory behaviors from employers have also been expanded. Whereas before, employers were prohibited from taking action against current employees, now they are also prohibited from taking actions that adversely impact former employees’ current or future employment and cannot contact or threaten to contact immigration services on employees or their family members.

The statute of limitations for bringing claims forward has been extended from one year to two years and the remedies affected employees may receive have also been updated. Employers found violating the whistleblower law may now face penalties of up to $10,000 and have to pay punitive damages and backpay. Employees may also seek coverage of attorneys’ fees, reinstatement or front pay, and reinstatement of full fringe benefits and seniority rights. The employee may now also seek jury trials.

Employers are required to post a notice of employees’ whistleblower rights in a conspicuous location frequented by employees. The NYS Department of Labor is likely developing a sample notice for employers. Employers should also train supervisors and HR representatives on how to handle complaints as an increase in complaints is expected once the amendment goes into effect. The law does allow employers to seek reimbursement for attorneys’ fees, costs, and disbursements from employees who bring claims “without a basis in fact or law.”

Written by Cornell ILR School Career Exploration Intern Ilana Kruchenetskaya.