On October 28, 2021, New York Governor Kathy Hochul signed legislation (SB 4394) which expands the protections available to individuals who claim retaliation for reporting alleged employer wrongdoing under NY Labor Law Section 140. The expanded protections go into effect on January 26, 2022.
Who Does the Law Apply To?
New York whistleblower protections defines “employee” as a current or former employee, in addition to independent contractors.
What are the Key Highlights of the Law?
No Retaliation. Employers cannot take retaliatory action against an employee, whether it is within the scope of their job duties, because they:
- Whistle blow to a supervisor or a public body;
- Testify in a related action against their employer; or
- Refuse to participate in illegal activity.
Notification Requirements. Employees are not required to give their employer advance notice when whistleblowing to a supervisor or public body if:
- There is an imminent and serious danger to public health;
- By giving notice the employee thinks related evidence will be destroyed;
- Minors are at risk;
- The employee or someone else would be physically harmed; or
- The supervisor already knows about the issue and will not correct it.
Notice Requirements. The law also has a mandatory posting requirement for employers that must notify employees about their protections, rights, and obligations under the law and be in a conspicuous, easily accessible, well-lit area that is frequented by employees and applicants.
Employers must inform employees of their rights under the revised law by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants.”
Next Steps for Employers
The New York Department of Labor is expected to issue a model notice for employers to use prior to the effective date. Once the notice is made available employers should ensure that is posted in a prominent location that is easily accessible and regularly visited by employees and job applicants.
Employers with a Whistleblower policy in their employee handbook may also wish to review and consult with their legal counsel as whether they should make updates to their policy in accordance with this expanded coverage.
In addition, supervisors/managers and human resources should be trained on the implications of the new law, including proper responses to employee communications that may be construed as reports of violations of law; avoiding retaliation against employees who may be seen to have reported alleged violations; and examining adverse employment actions to avoid claims under the new law.