New York Significantly Expands Its Whistleblower Law
The state of New York has amended its whistleblower law to make it one of the
most expansive in the country, providing remedies, including potentially
punitive damages, to employees, former employees and independent contractors.
The requirement to report any suspected wrongdoing first to the employer now has
many exceptions. Moreover, a worker may blow the whistle on any conduct the
individual reasonably believes violates any law, rule or regulation, or
executive order or any judicial or administrative decision, ruling or order.
Workers also are protected for reporting any conduct that they reasonably
believe constitutes a substantial and specific danger to the public health or
"Retaliation claims already ranked high among the types of claims asserted in
COVID-19 employment lawsuits,"
Expansive new whistleblower laws like New York's "make it probable that an
increasing percentage of lawsuits will include whistleblower claims either alone
or in conjunction with other statutory and common-law theories of recovery,"
New York is joining other states with broad protections for whistleblowers,
including California and New Jersey. But New York's new provisions are
Expect an Increase in Litigation
"Employers can expect a significant increase in litigation and potential
liability for whistleblower claims in New York," wrote Greg Keating, an attorney
with Epstein Becker Green in Boston, and Christopher Shur, an attorney with
Epstein Becker Green in New York City.
They noted that the New York whistleblower law now has an expanded definition of
retaliation. This definition includes:
Discriminating against someone for
exercising their rights under the law.
Taking actions or threatening to
take actions affecting current or future employment.
Contacting U.S. immigration
Threatening to report the suspected
immigration or citizenship status of a whistleblower or a whistleblower's family
or household member.
Employers should implement policies that encourage employees to report
internally if they believe they've been made aware of a violation of the law.
Employers should develop protocols that allow employees to report anonymously
possible violations of law within the company. "Such protocols may encourage
employees who fear retaliation to come forward prior to reporting to an outside
"Additionally, an expansive whistleblower policy that provides guidance for
employees and sternly rebukes any forms of retaliation may aid in creating a
workplace where employees feel that their concerns are valued and any complaints
will be adequately addressed."
Berkowitz said New York
employers also should:
Revisit codes of conduct to ensure that all employees know what is considered
acceptable and unacceptable behavior.
Revisit internal and external whistleblower and reporting policies and
procedures to be sure individuals know how to bring to the employer's attention
conduct that may be unlawful, that they perceive to be unethical or that
constitutes a danger to the public health or safety. Policies must also make
clear that bringing knowingly false claims will subject employees to discipline.
Review training protocols for HR and managers on how to respond to complaints.
Post notice of the law.
In addition, Berkowitz said,
employers should review
their internal investigation procedures for the following characteristics:
The procedure should provide protections for the confidentiality of
whistleblowers, consistent with a full and fair investigation.
The company should ensure that investigations are free from bias.
The procedure should provide for appropriate handling of complaints to ensure
that the right people or departments investigate.
The company must identify individuals who are qualified to conduct
The organization should ensure that investigations are carried out, when
appropriate, under the protection of attorney-client privilege.
The company needs to consider how and when to communicate to regulators or
others regarding the claims.
Ideally, an internal
report should go to someone who has no control or influence over the
whistleblower's employment status,
Baron said. "A complaining employee's supervisors should be advised of
complaints only if and to the extent they need to know—for example, to conduct a
proper investigation," he said.
The right investigator may include someone in HR, compliance staff, inside
counsel or outside counsel, depending on the situation, Baron noted.
"The best policy is one of compliance," Hathaway said. "Don't engage in illegal
behavior that can be the subject of an employee complaint."