The state of New York has expounded the protection afforded to employees who are at the receiving end of retaliatory actions for their decision to blow the whistle against their employers. Prior to this amendment, the protection whistleblowers enjoyed was obtained from the federal protection laws, however under this new law, there has been the provision of remedies and damages of a potentially punitive nature to employees and peculiarly this protection is also extended to cover former employees and also independent contractors. In the old law, employees were only protected against substantial and specific danger to public health and safety, or health care fraud; however the law has been extended and the category of workers who are afforded the protection of this law.
Summary of the Amendment
- The activities under which the law now protects have been expanded to include the provisions that restrains an employer from exercising any form of retaliatory action against an employee that reveals or intends to reveal the actions of the employer that is reasonably believed to be in violation of the law, or rule, or any regulation in the opinion of the employee, and this action must be believed by the employee to pose a substantial and specific danger to the public health and safety of the individual. The definition of when an employee can be said to “reasonably believe” has been interpreted by the courts to mean when an employee has shown good faith, reasonable basis for their belief that a violation has occurred. This law has further been interpreted to show that an employee can only be protected when they pass on to their supervisor or their superior information concerning the illegal activity that is dangerous to the public and that constitutes a health situation. Thus any other activity that does not fall within the category of health care issues or health care fraud may become a victim of retaliation without the protection of the law. Furthermore,the courts have concluded that for the law to apply to private employees, there must not just be an allegation, rather there must be proof of an actual violation of the law or regulation in question. In this same heading, the law has been expanded to provide that where the employer believes that reporting the matter to a superior will result in destruction of evidence, or that the employer already knows the of the situation, or that reporting the situation would result in the bodily harm to the employee, or also that the action poses an imminent threat to the public health and safety, and finally that the action would result in the harm being done to a minor; the employee may decide to inform on the employer and still remain under the protection of the law.
- The scope of persons under the protection of the law has also been increased from current employees as was the case with the former law to former employees and also independent contractors, this attempts to protect whistleblowers from current and future harm even in the industry where they work in
- There is also the inclusion of executive orders among the rules, law, and regulations which if broken can be reported.
- The description of retaliatory action was also expanded from just discharge, suspension, or demotion of an employee or other unfavourable action taken against the employee under the terms and condition of the employment. The amendments however have described retaliatory actions as such actions that are taken by an employer to discharge, threaten, penalise, threaten or through any means carry out any act of discrimination against the employee, the act goes further to draw up a list of actions to include but not limited to discharge, suspension, or demotion, actions or threats to undertake some actions that would unfavorably affect a former employee’s current or future employment abilities, remarkably, such actions also include threatening to contact or actually contacting the United States immigration authorities.
- A new addition to the act is the requirement of employers to notify their employees of the protection afforded them under the act, through a notice which must be posted in noticeable, easily accessible and well lit place where the employees are known to usually frequent, this notice is supposed to adequately inform the employees of their rights and the protection offered them by the act.
- Another notable amendment was the increase in the period given as the statute of limitation period within the employee may file their case from one year to two years, the provisions of the law also allow the parties access to a jury trial if they wish, this is likely to witness an increase in the number of claims brought under this issue.
- The law also includes the executive branch departments of the federal, state and local governments in the definition of public body.
- The new amendments also protects employees even in situations when they are not acting within the perimeter of their job description, this is in response to some rulings of the court which provided that employees who reveal these illegal activities that are not within their scope of job description are not under the same protection.
- The law has also expanded the relief available to employees to include front pay, punitive damages, civil penalties that should however not exceed the sum of $10,000. Plaintiffs who are successful in their suits may also obtain reliefs such as injunctions, reinstatement, compensation for lost wages, benefits as well as other remunerations and reasonable costs, they may even be entitled to recover their attorney’s fees and other disbursements. On the other hand, where the court finds that a suit was brought without any legal or reasonable foundation, the court may award damages and costs in favour of the employer against the employee.
In the light of the amended laws, the duties of the employers to ensure that do not fall short of the laws may be any or all of the following:
- Employers should endeavour to comply with the provisions of the law, especially the part that requires the employers to conspicuously post the rights and protections of the employees in a public place that is well accessible and well lit and that is frequented by the employees.
- Systems may be put in place by employers to ensure that their employees, especially those who are afraid of retaliation may make anonymous reports as this will discourage them from reporting to an external agency before first informing their superiors.
- Employees’ code of conduct should also be revisited and reviewed so that there would be no form of confusion as to what constitutes and what is not considered acceptable behaviour.
- Protocols that guide human resource personnel in attending and handling complaints should also be reviewed.
- Supervisors should be trained on how to handle reports of violations and how to reduce the risks of retaliation.
- The organisation should consider deeply how and when they would communicate to regulators on the issues they discover.
- Persons who are qualified may be identified and allowed to conduct investigations into any report made by any personnel against the company and these investigations should be given the status of privileged information especially for the complainants.