Expansion of NYS Whistleblower Protection Law includes posting requirement
Beginning Jan. 26, 2022, New York State’s “whistleblower” protection law significantly expands the scope of New York Labor Law Section 740 (NYLL 740). Employees and independent contractors will be protected for reporting employer activity that they reasonably believe violates any law.
By Jan. 26, 2022, employers are required to post notice of employees’ rights under the law in conspicuous places customarily frequented by employees and applicants for employment. As of the issuance of this news article, NYS has not issued a model poster. In the meantime, you should post the notice of the expanded whistleblower protection law.
Changes to Whistleblower Protection Law
The most significant changes are that independent contractors will be covered by the law and that employees will be protected if they disclose activity that they reasonably believe violates any law. A summary of the changes is below.
- The definition of “employee” will include former employees and independent contractors.
- Executive orders and judicial or administrative decisions, rulings and orders will be within the definition of “law, rule, or regulation.”
- The revised law clarifies that for employer actions to be “retaliatory,” they need not be “personnel” actions. In addition to actions that would commonly be understood to constitute retaliation, such as actual or threatened termination, suspension or demotion, employers may not (1) take action that would harm a former employee’s current or future employment, such as “blackballing” within an industry; or (2) report or threaten to report the immigration status of the employee or the employee’s family member.
- Employees will be protected if they disclose or threaten to disclose to a supervisor or public body an activity, policy, or practice that the employee reasonably believes (1) violates a law, rule, or regulation; or (2) poses a substantial and specific danger to public health and safety.
- Under the existing law, employees must first notify their employer of the alleged violation before reporting it to a public body. Under the revised law, an employee will only have to make a “good faith effort” to notify the employer, and that’s only if no exception applies. The employee will not have to make a good faith effort to notify the employer if the employee reasonably believes that there is: imminent danger to public safety; if the employee reasonably suspects that the employer will destroy evidence; if the employee reasonably believes physical harm would result; or if the employee reasonably believes the employer is already aware of the activity and will not correct it.
- The statute of limitations is increased to two years. The parties are also entitled to a jury trial.
- Employers can be liable for punitive damages if the violation was willful, malicious, or wanton. Employers can also be assessed a civil penalty up to $10,000.
These changes to the law are effective on Jan. 26, 2022.
If you have questions on the Whistleblower Protection Law, please contact either Susan Latessa, Director of HR/Benefits, at (315) 898-2000 or email@example.com or Tracy Rickett, Human Resources Generalist, at (315) 898-2017 or firstname.lastname@example.org.