The NYS DOL has issued a model notice for private employers to use to notify their employees of the expanded protections under the NYS whistleblower law that went into effect on January 26, 2022. The model notice, designated by the NYS DOL as “LS 740 (2/22),” is available here. It contains the text of the amended law and states that the notice should be posted “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”
Prior to the amendment, the NYS whistleblower law was limited to protecting employees from retaliation in limited circumstances — namely, for reporting an employer’s unlawful activity, policy or practice that “creates and presents a substantial and specific danger to the public health or safety” or “constitutes health care fraud.” This law did not provide protection for reporting other activities that did not directly affect public health or safety, such as sexual harassment or tax evasion. At the time, employees were also required to first report violations directly to their employers before complaining to a public body, in order to allow their employers an opportunity to remedy the alleged unlawful activity. The statute of limitations under the original version of the law was one year and successful employees could recover back pay.
The amended law, which is set forth at Section 740 of the New York Labor Law, significantly expands protections for private employees in a number of ways. In particular, the amended law:
- expands the definition of “employee” to include former employees and persons “employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers”;
- broadens the definition of retaliatory employment action to include actions or threats to take actions that would discriminate against an employee or former employee or adversely impact a former employee’s current or future employment; and contacting or threatening to contact immigration authorities (previously, this was limited to “discharge, suspension, or demotion”);
- eliminates the previous requirement that there be an actual violation of the law and instead provides protections for reasonable beliefs that an employer’s activity or conduct is in violation of a law, rule or regulation, or activities, policies or practices that the employee reasonably believes “pose a substantial and specific danger to the public health or safety;”
- requires only a “good faith effort” that employees notify their employers of violations before disclosing such violations to a public body, as compared to requiring actual notice to the employer;
- expands the remedies available to whistleblowers from back pay to front pay; punitive damages for willful, malicious or wanton violations; civil penalties of up to $10,000; and the right to a jury trial; and
- increases the statute of limitations to bring whistleblower claims from one to two years.
Finally, the amended law requires employers to post notice of the rights, obligations and protections under the law in a conspicuous and well-lighted place. In addition to posting the required notice, NY employers should be sure to update their policies and procedures for investigating and responding to complaints to account for the expanded protections under the law and also train managers to address complaints appropriately. If you have any questions about this amended law, we would be happy to assist.