Law Office of Lori D. Ecker

1. What legal protection does New York provide private sector employees regarding whistleblowing and retaliation?

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
New York courts do not recognize a common law claim for wrongful termination. Thus, an employee may be discharged for any reason at any time, unless that reason is prohibited by a constitutional provision, statute, or contractual agreement.

Statutory Protections
The New York Legislature has adopted statutory protections for certain activities. Most notably, New York has general whistleblower protection statutes and a whistleblower protection statute for health care employees. Also, several other New York statutes contain anti-retaliation provisions. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, lie detectors, toxic substances, and workers' compensation.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
New York does not recognize a common law claim for wrongful termination. Accordingly, employees must rely exclusively on the statutory protections passed by the New York Legislature.

Statutory Protections
General Whistleblower Protection: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying at a proceeding concerning a violation of New York's labor laws (including the state's occupational safety and health laws). The complaint may be made to either the employer or the New York commissioner of labor. N.Y. Lab. Law § 215.

General Whistleblower Protection - Danger to Public Health or Safety: An employee may not be discharged or penalized in retaliation for the following activities:

• Disclosing an illegal activity, policy, or practice of the employer that presents a substantial and specific danger to the public health or safety. The disclosure must be made to either a supervisor or a public body (such as a legislative body, a judicial officer, an administrative agency, or law enforcement agency). However, if an employee chooses to report the violation to a public body, the employee must first bring the violation to the attention of a supervisor and then give the employer a reasonable opportunity to correct the activity, policy, or practice.
• Providing information or testimony to a public body in the course of an investigation, hearing, or inquiry into an activity, policy, or practice that presents a substantial and specific danger to the public health and safety.
• Objecting to, or refusing to participate in, an illegal activity, policy, or practice that presents a substantial and specific danger to the public health or safety.

This whistleblower protection statute only covers conduct that presents a substantial and specific danger to the public health and safety. The applicable laws may be found in New York state law, federal law, or municipal law. An employee who reports-or refuses to perform-illegal conduct that does not pose a danger to the public (such as fraudulent billing practices) is not protected by this statute. Unlike many federal laws and laws in other states, an employee who mistakenly believes that a violation has occurred is not protected, even if that belief is reasonable and in good faith. An employee may be entitled to reinstatement to the same position, reinstatement of full fringe benefits, and compensation for lost wages and benefits. N.Y. Lab. Law § 740.

Health Care Whistleblowers - Reporting Improper Quality of Patient Care: Health care employees receive similar protections to the "general whistleblower protection - danger to public health or safety" above. A health care employee may not be discharged (or discriminated against) in retaliation for:

• Disclosing, or threatening to disclose, an employer's policy or practice that the employee believes constitutes improper quality of patient care. The disclosure made be made to either a supervisor or to a public body. Unlike the general whistleblower protection statute, a health care employee's belief that the policy or practice constitutes improper quality of patient care does not need to be accurate-it needs to only be (1) reasonable and (2) in good faith.
• Objecting to, or refusing to participate in, an activity, policy, or practice that the employee believes constitutes improper quality of patient care. Again, this belief need not be factually correct, but it must be (1) reasonable and (2) in good faith.

To receive this statutory protection, however, an employee must first inform a supervisor of the improper quality of patient care. The employer must then be given a reasonable opportunity to correct the activity, policy, or practice. An employee is not protected if the employee goes directly to a public body. However, an exception to this rule is made where the improper quality of patient care presents an imminent threat either to the public health/safety or to the patient, and the employee reasonably believes that reporting the violation to a supervisor would not correct the problem. N.Y. Lab. Law § 741.

Civil Service: A public employee may not be retaliated against for disclosing government information regarding a violation of the law resulting in a in a threat to public health and safety or improper governmental action. N.Y. CLS Civ. S.§ 75-b.

Commercial Goods Transportation: An employee may not be retaliated against for reporting a violation of the New York State Commercial Goods Transportation Act. N.Y. Lab. Law § 862-e.

Construction Industry: An employee may not be retaliated against for reporting a violation of the New York State Construction Industry Fair Play Act. N.Y. Lab. Law § 861-f.

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice that is forbidden under New York's discrimination laws (Human Rights Law). Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a proceeding, or assisting in a proceeding concerning a violation of discrimination laws. Under the Human Rights Law, New York prohibits discrimination in employment on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status. N.Y. Exec. Law § 296(1)(e).

Non-profit Corporations: An employee of a not-for-profit corporation that has over 20 employees may not be retaliated against for reporting suspected misconduct. N.Y. CLS N-PCL § 715-b.

Nursing Home: An employee may not be retaliated against for reporting incorrect operation of a nursing care facility. N.Y. CLS Soc. Serv. § 460-d.

Psychological Stress Evaluators - Lie Detectors: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, or testifying in a proceeding concerning violations of New York's laws against psychological stress evaluators. Under these laws, an employer cannot require, request, suggest, or knowingly permit an employee to submit to a psychological stress evaluator examination (such as a lie detector test). A violation is a misdemeanor. N.Y. Lab. Law § 736.

Schools: School employees who report improper or illegal financial conduct may not be retaliated against. N.Y. CLS Educ. § 3028-d.

Toxic Substances: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning New York's Toxic Substances laws. N.Y. Lab. Law § 880(3).

Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers' compensation claim, or testifying in a workers' compensation proceeding. N.Y. Workers' Comp. Law § 120.

3. How do I file a whistleblower or retaliation claim in New York?

Generally: An employee must file a complaint in an appropriate court within the period specified by the statute of limitations. The default rule is that a complaint must be filed within 3 years of the retaliatory action. However, if a statute provides a different statute of limitations period, the statute controls. If you believe you have a claim, you should contact a lawyer. N.Y. C.P.L.R. § 214(2).

General Whistleblower Protection: An employee may report an employer's retaliatory action to the commissioner of the New York Department of Labor. The commissioner will investigate and may assess the employer with a civil penalty (fine). An employee may also file a complaint in an appropriate court within two years of the retaliatory action. The employee must serve notice upon the attorney general before beginning the lawsuit. If you believe you have a claim, you should contact a lawyer.

The New York Department of Labor may be reached at:

NYS Department of Labor
W. Averell Harriman State Office Campus
Building 12
Albany, NY 12240

Phone: 518-457-9000
Toll-Free: 1-800-HIRE-992
E-mail: nysdol@labor.state.ny.us
TTY/TDD: 1-800-662-1220
Voice: 1-800-421-1220

General Whistleblower Protection - Danger to Public Health or Safety: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. The action must be filed in a court in the county in which the retaliatory action occurred, in the county in which the employee resides, or in the county in which the employer has its principal place of business. It is important to note that if an employee files a claim under this statute, the employee waives the right to proceed with any other action, under contract, collective bargaining agreement, law, rule, or regulation. If you believe you have a claim, you should contact a lawyer immediately.

Health Care Employees - Reporting Improper Quality of Patient Care: An employee must file a complaint in an appropriate court within two years of the retaliatory action. The action must be filed in a court in the county in which the retaliatory action occurred, in the county in which the employee resides, or in the county in which the employer has its principal place of business. It is important to note that if an employee files a claim under this statute, the employee waives the right to proceed with any other action, under contract, collective bargaining agreement, law, rule, or regulation. If you believe you have a claim, you should contact a lawyer immediately.

Discrimination: An employee may file a complaint with the New York State Division of Human Rights. The complaint must be filed within one year of the retaliatory action. If you believe you have a claim, you should contact the Division of Human Rights immediately at:

New York State Division of Human Rights
One Fordham Plaza, 4th Floor
Bronx, NY 10458

Phone: (718) 741-8400
TDD: (718) 741-8300

Alternatively, an employee may file a private lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. If you elect to file a lawsuit, you should contact a lawyer immediately.

Toxic Substances: An employee must file a complaint with the commissioner of the Department of Labor within 30 days of the retaliatory action. The commissioner will investigate and, if the commissioner determines that a violation has occurred, may request that the attorney general bring an action on behalf of the employee. The commissioner has 90 days to notify the employee of the determination. If you believe you have a claim, you should contact the New York Department of Labor immediately. Contact information for the Dept. of Labor is provided above.

Workers' Compensation: An employee may file a complaint with the New York Workers' Compensation Board. The complaint must be filed within 2 years of the retaliatory action. The New York Workers' Compensation Board may be reached at:

NYS Workers' Compensation Board
20 Park Street
Albany, NY 12207

Toll-Free: 1-877-632-4996
Discrimination Complaint Form

An employee should complete the discrimination form and bring it to the nearest Workers' Compensation Board District Office.

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