On January 26, 2022, updates to New York Labor Law § 740 will cause major changes to New York whistleblower laws. Cathryn Harris-Marchesi, partner and employment attorney at The Noble Law, explains these revisions in our most recent audio blog.
Extending New York Whistleblower Protections
Prior to the enactment of this amendment, whistleblower law in New York provided little support for employees who spoke out against their employer’s violation of the law. Employers could only be held accountable for retaliation against whistleblowers if the violation filed posed a clear and articulable danger to public health and safety or if the violation was related to fraud associated with the healthcare system.
The new amendment covers all employees, including current employees, former employees, and self-employed independent contractors. The laws applicable to whistleblower protections have also been expanded in this amendment. Violations are no longer restricted to statutes, but regulations, judicial or administrative decisions, and executive orders, covering the current health crisis of COVID-19.
Responsibilities of the Whistleblower
While, previously, the employee was required to inform their employer of a violation before reporting to a government body, a report of alleged violation to the employer is no longer required in specific instances. Employees must only make a good faith effort to notify their employer of any potential violations to provide an opportunity to solve the issue.
The requirement for New York whistleblowers to inform their employer of a violation prior to filing with a government body is now lifted in the following instances:
- If there is an eminent and serious danger to public health and safety
- If the employee reasonably believes that telling the employer would result in the destruction of evidence or concealment of the activity
- It the employee reasonably believes that reporting to their supervisor would result in harm to the employee or another person
- If the employee reasonably believes that the employer or supervisor is already aware of the activity and will not correct the issue
- It the activity could reasonably be expected to lead to the endangerment of a minor
Retaliation, Remedies, and Damages Redefined
Retaliation has also been redefined by the new law. Under the previous law, retaliation included demotion, unfavorable transfers, or termination. As of January 26, actions preventing future employment for former employees and independent contractors are prohibited. The statute of limitations is now extended from 1 to 2 years since the date of retaliation rather than the date of the violation. Employees are now also entitled to a jury trial, whereas they were not before. Additionally, remedies and damages now include front pay for employees in lieu of reinstatement with the company, putative damages if the violation was willful or malicious, and eligibility to a civil penalty up to $10,000.
What This Means for Employers
Another provision now requires all employers to post a notice of these changes in “conspicuously and easily accessible and well-lighted places customarily frequented by employees and applicants” by January 26, 2022. Employers are now recommended to include a section about the new whistleblower law in their employee manuals and reporting procedures, and they are advised to provide whistleblower training to their current supervising staff.