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New York Labor - Article 20-C - § 740 Retaliatory Personnel Action by Employers; Prohibition

Legal Research Home > New York Laws > Labor > New York Labor - Article 20-C - § 740 Retaliatory Personnel Action by Employers; Prohibition


Labor 
 
    §  740.  Retaliatory  personnel  action  by employers; prohibition. 1.
  Definitions.  For  purposes  of  this  section,   unless   the   context
  specifically indicates otherwise:
    (a) "Employee" means an individual who performs services for and under
  the   control   and   direction  of  an  employer  for  wages  or  other
  remuneration.
    (b) "Employer"  means  any  person,  firm,  partnership,  institution,
  corporation, or association that employs one or more employees.
    (c)  "Law,  rule  or  regulation" includes any duly enacted statute or
  ordinance or any rule or regulation promulgated pursuant to any federal,
  state or local statute or ordinance.
    (d) "Public body" includes the following:
    (i)  the  United  States  Congress,  any  state  legislature,  or  any
  popularly-elected  local  governmental  body,  or any member or employee
  thereof;
    (ii) any federal, state, or local judiciary, or any member or employee
  thereof, or any grand or petit jury;
    (iii) any federal, state,  or  local  regulatory,  administrative,  or
  public agency or authority, or instrumentality thereof; or
    (iv)   any   federal,   state,   or   local  law  enforcement  agency,
  prosecutorial office, or police or peace officer.
    (e) "Retaliatory personnel action" means the discharge, suspension  or
  demotion  of  an  employee,  or  other  adverse  employment action taken
  against an employee in the terms and conditions of employment.
    (f)  "Supervisor"  means   any   individual   within   an   employer's
  organization  who  has  the  authority  to  direct  and control the work
  performance of the affected employee; or who has managerial authority to
  take corrective action regarding the  violation  of  the  law,  rule  or
  regulation of which the employee complains.
    (g)  "Health care fraud" means health care fraud as defined by article
  one hundred seventy-seven of the penal law.
    2. Prohibitions. An employer shall not take any retaliatory  personnel
  action  against  an  employee  because  such  employee  does  any of the
  following:
    (a) discloses, or threatens to disclose to a supervisor or to a public
  body an activity,  policy  or  practice  of  the  employer  that  is  in
  violation  of  law,  rule  or  regulation  which  violation  creates and
  presents a substantial and specific  danger  to  the  public  health  or
  safety, or which constitutes health care fraud;
    (b)  provides  information  to,  or  testifies before, any public body
  conducting an investigation, hearing or inquiry into any such  violation
  of a law, rule or regulation by such employer; or
    (c) objects to, or refuses to participate in any such activity, policy
  or practice in violation of a law, rule or regulation.
    3.  Application.  The  protection against retaliatory personnel action
  provided by paragraph (a) of subdivision two of this section  pertaining
  to  disclosure to a public body shall not apply to an employee who makes
  such disclosure to a public body unless the  employee  has  brought  the
  activity,  policy or practice in violation of law, rule or regulation to
  the attention of a supervisor of the  employer  and  has  afforded  such
  employer  a  reasonable  opportunity to correct such activity, policy or
  practice.
    4. Violation; remedy. (a) An employee who has been the  subject  of  a
  retaliatory  personnel action in violation of this section may institute
  a civil action in a court of competent jurisdiction for  relief  as  set
  forth  in  subdivision  five  of  this section within one year after the
  alleged retaliatory personnel action was taken.

    (b) Any action authorized by this section may be brought in the county
  in which the alleged  retaliatory  personnel  action  occurred,  in  the
  county  in  which the complainant resides, or in the county in which the
  employer has its principal place of business.
    (c)  It  shall  be  a  defense  to any action brought pursuant to this
  section that the personnel action was predicated upon grounds other than
  the employee's exercise of any rights  protected  by  this  section.  It
  shall  also  be  a  defense  that  the  individual  was  an  independent
  contractor.
    (d) Notwithstanding the provisions of paragraphs (a) and (c)  of  this
  subdivision,  a  health  care  employee  who  has  been the subject of a
  retaliatory action by a health care employer  in  violation  of  section
  seven  hundred forty-one of this article may institute a civil action in
  a court of competent jurisdiction for relief as set forth in subdivision
  five of this section within two  years  after  the  alleged  retaliatory
  personnel  action was taken. In addition to the relief set forth in that
  subdivision, the court, in its discretion, based upon a finding that the
  employer acted in bad faith in the retaliatory action,  may  assess  the
  employer  a  civil  penalty  of  an  amount  not  to exceed ten thousand
  dollars, to be paid to the  improving  quality  of  patient  care  fund,
  established  pursuant  to section ninety-seven-aaaa of the state finance
  law.
    5. Relief. In any action brought pursuant to subdivision four of  this
  section, the court may order relief as follows:
    (a) an injunction to restrain continued violation of this section;
    (b) the reinstatement of the employee to the same position held before
  the retaliatory personnel action, or to an equivalent position;
    (c) the reinstatement of full fringe benefits and seniority rights;
    (d)  the compensation for lost wages, benefits and other remuneration;
  and
    (e) the payment by the employer of  reasonable  costs,  disbursements,
  and attorney's fees.
    6.  Employer  relief.  A court, in its discretion, may also order that
  reasonable attorneys' fees and court costs and disbursements be  awarded
  to  an  employer  if  the  court determines that an action brought by an
  employee under this section was without basis in law or in fact.
    7. Existing rights.  Nothing  in  this  section  shall  be  deemed  to
  diminish  the  rights, privileges, or remedies of any employee under any
  other law or regulation or under any collective bargaining agreement  or
  employment  contract;  except  that  the  institution  of  an  action in
  accordance with this section shall be deemed a waiver of the rights  and
  remedies  available  under  any  other  contract,  collective bargaining
  agreement, law, rule or regulation or under the common law.
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Last modified: February 15, 2014