NY Lab L § 740 (2021)
2021 New York Laws LAB - Labor Article 20-C - Retaliatory Action by Employers 740 - Retaliatory Action by Employers; Prohibition.

* §  740.  Retaliatory  personnel action by employers; prohibition. 1. Definitions.  For  purposes  of  this  section,   unless   the   context specifically indicates otherwise:  (a) "Employee" means an individual who performs services for and under the   control   and   direction  of  an  employer  for  wages  or  other remuneration.  (b) "Employer"  means  any  person,  firm,  partnership,  institution, corporation, or association that employs one or more employees.  (c)  "Law,  rule  or  regulation" includes any duly enacted statute or ordinance or any rule or regulation promulgated pursuant to any federal, state or local statute or ordinance.  (d) "Public body" includes the following:  (i)  the  United  States  Congress,  any  state  legislature,  or  any popularly-elected  local  governmental  body,  or any member or employee thereof;  (ii) any federal, state, or local judiciary, or any member or employee thereof, or any grand or petit jury;  (iii) any federal, state,  or  local  regulatory,  administrative,  or public agency or authority, or instrumentality thereof; or  (iv)   any   federal,   state,   or   local  law  enforcement  agency, prosecutorial office, or police or peace officer.  (e) "Retaliatory personnel action" means the discharge, suspension  or demotion  of  an  employee,  or  other  adverse  employment action taken against an employee in the terms and conditions of employment.  (f)  "Supervisor"  means   any   individual   within   an   employer's organization  who  has  the  authority  to  direct  and control the work performance of the affected employee; or who has managerial authority to take corrective action regarding the  violation  of  the  law,  rule  or regulation of which the employee complains.  (g)  "Health care fraud" means health care fraud as defined by article one hundred seventy-seven of the penal law.   2. Prohibitions. An employer shall not take any retaliatory  personnel action  against  an  employee  because  such  employee  does  any of the following:  (a) discloses, or threatens 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;  (b)  provides  information  to,  or  testifies before, any public body conducting an investigation, hearing or inquiry into any such  violation of a law, rule or regulation by such employer; or  (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.   3.  Application.  The  protection against retaliatory personnel action provided by paragraph (a) of subdivision two of this section  pertaining to  disclosure to a public body shall not apply to an employee who makes such disclosure to a public body unless the  employee  has  brought  the activity,  policy or practice in violation of law, rule or regulation to the attention of a supervisor of the  employer  and  has  afforded  such employer  a  reasonable  opportunity to correct such activity, policy or practice.   4. Violation; remedy. (a) An employee who has been the  subject  of  a retaliatory  personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for  relief  as  set forth  in  subdivision  five  of  this section within one year after the alleged retaliatory personnel action was taken.  (b) Any action authorized by this section may be brought in the county in which the alleged  retaliatory  personnel  action  occurred,  in  the county  in  which the complainant resides, or in the county in which the employer has its principal place of business.  (c)  It  shall  be  a  defense  to any action brought pursuant to this section that the personnel action was predicated upon grounds other than the employee's exercise of any rights  protected  by  this  section.  It shall  also  be  a  defense  that  the  individual  was  an  independent contractor.  (d) Notwithstanding the provisions of paragraphs (a) and (c)  of  this subdivision,  a  health  care  employee  who  has  been the subject of a retaliatory action by a health care employer  in  violation  of  section seven  hundred forty-one of this article may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within two  years  after  the  alleged  retaliatory personnel  action was taken. In addition to the relief set forth in that subdivision, the court, in its discretion, based upon a finding that the employer acted in bad faith in the retaliatory action,  may  assess  the employer  a  civil  penalty  of  an  amount  not  to exceed ten thousand dollars, to be paid to the  improving  quality  of  patient  care  fund, established  pursuant  to section ninety-seven-aaaa of the state finance law.   5. Relief. In any action brought pursuant to subdivision four of  this section, the court may order relief as follows:  (a) an injunction to restrain continued violation of this section;  (b) the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position;  (c) the reinstatement of full fringe benefits and seniority rights;  (d)  the compensation for lost wages, benefits and other remuneration; and  (e) the payment by the employer of  reasonable  costs,  disbursements, and attorney's fees.   6.  Employer  relief.  A court, in its discretion, may also order that reasonable attorneys' fees and court costs and disbursements be  awarded to  an  employer  if  the  court determines that an action brought by an employee under this section was without basis in law or in fact.   7. Existing rights.  Nothing  in  this  section  shall  be  deemed  to diminish  the  rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement  or employment contract.   * NB Effective until January 26, 2022   * § 740. Retaliatory action by employers; prohibition. 1. Definitions. For  purposes of this section, unless the context specifically indicates otherwise:  (a) "Employee" means an individual who performs services for and under the  control  and  direction  of  an  employer  for   wages   or   other remuneration, including former employees, or natural persons employed as independent   contractors  to  carry  out  work  in  furtherance  of  an employer's business enterprise who are not themselves employers.  (b) "Employer"  means  any  person,  firm,  partnership,  institution, corporation, or association that employs one or more employees.  (c)  "Law, rule or regulation" includes: (i) any duly enacted federal, state or local statute or ordinance or executive order; (ii) any rule or regulation  promulgated  pursuant  to  such  statute  or  ordinance   or executive  order;  or  (iii)  any  judicial  or administrative decision, ruling or order.  (d) "Public body" includes the following:  (i) the United States Congress, any state legislature, or any  elected local governmental body, or any member or employee thereof;  (ii)  any  federal,  state,  or local court, or any member or employee thereof, or any grand or petit jury;  (iii) any federal, state,  or  local  regulatory,  administrative,  or public agency or authority, or instrumentality thereof;  (iv)   any   federal,   state,   or   local  law  enforcement  agency, prosecutorial office, or police or peace officer;  (v) any federal, state or local department of an executive  branch  of government; or  (vi)  any division, board, bureau, office, committee, or commission of any of the public bodies described in subparagraphs (i) through  (v)  of this paragraph.  (e)  "Retaliatory action" means 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 this section, including (i)  adverse  employment actions  or  threats  to take such adverse employment actions against an employee in the terms of conditions  of  employment  including  but  not limited  to  discharge, suspension, or demotion; (ii) actions or threats to take such actions that would adversely  impact  a  former  employee's current  or  future  employment;  or  (iii)  threatening  to  contact or contacting 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, as defined in subdivision  two of  section  four  hundred fifty-nine-a of the social services law, to a federal, state, or local agency.  (f)  "Supervisor"  means   any   individual   within   an   employer's organization  who  has  the  authority  to  direct  and control the work performance of the affected employee; or who has managerial authority to take corrective action regarding the  violation  of  the  law,  rule  or regulation of which the employee complains.   2.  Prohibitions.  An  employer  shall not take any retaliatory action against an employee, whether or not within the scope of  the  employee's job duties, because such employee does any of the following:  (a) discloses, or threatens to disclose to a supervisor or to a public body  an  activity, policy or practice of the employer that the employee reasonably believes is in violation of law, rule or regulation  or  that the employee reasonably believes poses a substantial and specific danger to the public health or safety;  (b)  provides  information  to,  or  testifies before, any public body conducting an investigation, hearing or inquiry into any such  activity, policy or practice by such employer; or  (c) objects to, or refuses to participate in any such activity, policy or practice.   3.  Application. The protection against retaliatory action provided by paragraph  (a)  of  subdivision  two  of  this  section  pertaining   to disclosure  to  a  public  body shall not apply to an employee who makes such disclosure to a public body unless the employee  has  made  a  good faith  effort  to  notify  his or her employer by bringing the activity, policy or practice to the attention of a supervisor of the employer  and has  afforded  such  employer  a  reasonable opportunity to correct such activity, policy or practice. Such employer notification  shall  not  be required  where:  (a)  there  is  an  imminent and serious danger to the public health or safety;  (b)  the  employee  reasonably  believes  that reporting to the supervisor would result in a destruction of evidence or other  concealment  of  the  activity,  policy  or  practice;  (c)  such  activity, policy or practice could reasonably be  expected  to  lead  to endangering the welfare of a minor; (d) the employee reasonably believes that  reporting  to  the supervisor would result in physical harm to the employee  or  any  other person; or (e) the employee reasonably believes that the supervisor is already aware of the activity, policy or practice and will not correct such activity, policy or practice.   4. Violation; remedy. (a) An employee who has been the  subject  of  a retaliatory  action  in  violation of this section may institute a civil action in a court of competent jurisdiction for relief as set  forth  in subdivision  five  of  this  section  within two years after the alleged retaliatory action was taken.  (b) Any action authorized by this section may be brought in the county in which the alleged retaliatory action occurred, in the county in which the complainant resides, or in the county in which the employer has  its principal  place  of  business. In any such action, the parties shall be entitled to a jury trial.  (c) It shall be a defense to  any  action  brought  pursuant  to  this section  that  the  retaliatory action was predicated upon grounds other than the employee's exercise of any rights protected by this section.   5. Relief. In any action brought pursuant to subdivision four of  this section, the court may order relief as follows:  (a) an injunction to restrain continued violation of this section;  (b) the reinstatement of the employee to the same position held before the  retaliatory  action,  or to an equivalent position, or front pay in lieu thereof;  (c) the reinstatement of full fringe benefits and seniority rights;  (d) the compensation for lost wages, benefits and other remuneration;  (e) the payment by the employer of  reasonable  costs,  disbursements, and attorney's fees;  (f)  a  civil penalty of an amount not to exceed ten thousand dollars; and/or  (g) the payment by the employer of punitive damages, if the  violation was willful, malicious or wanton.   6.  Employer  relief.  A court, in its discretion, may also order that reasonable attorneys' fees and court costs and disbursements be  awarded to  an  employer  if  the  court determines that an action brought by an employee under this section was without basis in law or in fact.   7. Existing rights.  Nothing  in  this  section  shall  be  deemed  to diminish  the  rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement  or employment contract.   8.  Publication.  Every  employer  shall  inform  employees  of  their protections, rights and obligations under this  section,  by  posting  a notice  thereof.  Such  notices  shall be posted conspicuously in easily accessible and well-lighted places customarily frequented  by  employees and applicants for employment.   * NB Effective January 26, 2022