Private Sector – N.Y. Labor Law §§740, 741
Labor Law §740
1. Protected Employees
• Any employee
2. Covered Employees
• Any employer
3. Protected Activities
- Reporting or threatening to disclose to an employer or public body a policy or practice of the employer that is in the violation of any law (Federal or State) which violation creates and presents a substantial and specific danger to public health or safety, or constitutes health care fraud; provides information to or testifies in front of a public body, or objects to or refuses to participate in violation.
- To be protected, there must be an actual violation. The employee’s reasonable belief or good faith is insufficient. In other words, an employee may be fired for reporting “possible” violations of law. Bordell v. General Electric Co., 88 N.Y.2d 869 (1996).
- To succeed, the employee must establish that the discharge was in consequence of reporting. Lambert v. General Electric Co., 244 A.D.2d 841 (3d Dep’t 1997).
- Institution of a §740 claim irrevocably waives all other claims based upon the same facts. N.Y. Lab. Law § 740(7). For example, it has been held that the waiver provision of the whistleblower statute required dismissal of a hospital employee’s breach of contract claim against the hospital because such claim was based upon the theory that the hospital breached its contract by subjecting him to retaliatory conduct. Bordon v. North Shore Univ. Hosp., 275 A.D.2d 335 (2d Dep’t 2000). By contrast, the same provision did not require dismissal against a doctor for tortious interference with his contract with the hospital because such claim was separate and distinct from his claim under the whistleblower statute alleging retaliatory personnel action after raising concerns about the quality of medical care provided to two patents. Id.
4. Prohibited Employer Conduct
- An employer may not discharge, suspend, demote or take other adverse action against an employee who engages in protected activities.
Statute of Limitations – must bring cause of action within one year of the retaliatory conduct. N.Y. Lab. Law § 740(4)(a).
Labor Law §741
In 2002, a “parallel” whistleblower statute was enacted to provide health care employees with additional protections. It specifically pertains to alleged legal practices that pose a “substantial and specific danger” to public health and safety or a “significant threat” to the health of a specific patient.
1. Protected Employees
• Any individual who performs health care services for and under the control and direction of any public or private employer who provides health care services.
2. Covered Employers
• Any partnership, association, corporation, state, and municipality which:
- (1) provides health care services in a licensed facility under the public health law;
- (2) provides health care services within primary or secondary public or private school or university;
- (3) operates and provides health care under the mental hygiene law or correction law; and
- (4) registered with department of education.
3. Protected Activity
• Disclosing or threatening to disclose to a public body a policy or practice of an employer that the employee in good faith reasonably believes constitutes improper quality of patient care (any practice, action or failure to act of an employee which violates any law, rule, regulation or declaratory ruling adopted pursuant to law where the violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.
- Objects or refuses to participate in an employer’s policy or practice which employee, in good faith, reasonably believes constitutes improper quality of patient care.
- To be protected, the employee has to first bring the improper quality of patient care concerns to the attention of a supervisor and has to give the employer a reasonably opportunity to correct the activity or practice, unless the quality of care concern poses an immediate threat.4. Employer Prohibited Conduct• An employer may not discharge, suspend, demote or take other adverse employment action against an employee who engages in protected activities.