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New York Implements Amended Whistleblower Protections

On October 28, 2021, New York Senate Bill S4394A/A.5144A was signed into law, significantly expanding New York’s whistleblower law (Section 740). The Whistleblower Law protects individuals from retaliatory actions by an employer for reporting activity, a policy or practice that is in violation of a federal, state or local law, rule or regulation. As of January 26, 2022, the law provides expanded protections which have now officially gone into effect. As such, employers will need to be cognizant of the changes being implemented as well as their new obligations to individuals.

Prohibited Action

A number of additional protections were provided as part of the amendments to Section 740. Specifically, Section 740 prohibits an employer from taking retaliatory action against an employee for one of the following actions:

  • Disclosing, or threatening to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud;
  • Providing information to, or testifying before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer;
  • or Objecting to, or refusing to participate in any such activity, policy or practice in violation of a law, rule or regulation.

Employers should also be aware that when filing complaints, 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.

Expanded Definitions

A number of clarifications were also made to the definitions surrounding the applicability of the law. For instance, the law’s definition of retaliatory action was greatly expanded. Retaliatory action has now been defined as “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 the section, including:

  • adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment including but not limited to discharge, suspension, or demotion;
  • actions or threats to take such actions that would adversely impact a former employee’s current or future employment; or
  • threatening to contact or contacting the United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member to a federal, state or local agency.

The amended law also defines employees to now include former employees as well as independent contractors.

Notice Requirements

As part of the expansion under the law, employers are now also mandated to inform individuals of their protections, rights, and obligations under the law by posting a notice in the workplace. It is required that the notice is posted in a “conspicuous, easily accessible, well-lit area that is customarily frequented by employees and applicants for employment.” The New York Department of Labor has released a model notice that employers can post in order to ensure compliance.

Next Steps for Employers

The law is silent on whether electronic notice is an acceptable format of delivery, but for those employers with remote workers and/or without physical locations, it would be a best practice to ensure that an electronic version of the notice is provided to employees. Finally, it would be recommended to have current and future employees sign and acknowledge receipt of the notice and retain a copy of said acknowledgment in the employee’s personnel file. 

While the law does not specifically require employers to have a handbook policy, it is strongly recommended that covered employers implement a policy to demonstrate a commitment to whistleblower protection and to outline a reporting framework for any concerns.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.