In 2019, New York employees can expect to see a dramatic increase in the protections they are afforded as whistleblowers. Two bills, one originating from the Assembly (A7384) and one from the Senate (S3683), would amend New York’s Whistleblower Statutes (N.Y.L.L. §§740, 741) while simultaneously expanding the statutes’ breadth and protections.
Should this new legislation pass, potential whistleblowing employees may rest easier, as these new bills provide increased protection for those who choose to report concerns of workplace misconduct. The amendments make a number of crucial changes. Most notably, A7384 expands who is protected by the statute by including not only private employees in its definition of protected individuals, but also public and former employees who were not included previously. The bill also protects employees by eliminating the need for there to be an actual violation of the law by an employer for an employee to be protected. Instead, an employee merely needs to show that he or she “in good faith reasonably believes [an employer activity] has occurred or will occur” and “in good faith reasonably believes [that such activity] constitutes [an] illegal business activity.” This good faith requirement, adds the qualification that an employee can only be protected for bringing the suspected illegal activity to the attention of the employer (with a few specific exceptions). However, this requirement is eased by the inclusion of a requirement that employers must put employees on notice of their rights under the Whistleblower Statutes by posting a notice containing these rights in an easy to view location in the workplace.
Similarly, these new bills lower the bar required for an employee to meet the burden of proof in cases where the employee claims an adverse employment action was taken against them in retaliation for whistleblowing. Previously, an employee would have to prove that the whistleblowing was a “but-for” cause of the adverse action. To illustrate, an employee’s whistleblowing is a but-for cause if no adverse action would have been taken against the employee “but for” their reporting. Under the new laws, however, an employee must only show that his/her whistleblowing was a contributing factor in the employer’s adverse action against the employee. For example, under the new laws, an adverse action is actionable if the employee’s whistleblowing was one of the several reasons which motivated the employer to take an adverse action against the whistleblower.