During the COVID-19 health emergency, essential workers on the front lines in New York have been speaking out – blowing the whistle – about unsafe conditions. Sadly, many have been fired for doing so.
Unfortunately, the current law in New York fails to protect workers who complain of dangers to themselves or others – or about fraud. That is because Section 740 of the New York Labor Law (the “whistleblower unprotection law”) only protects whistleblowers who report conduct that the employee can prove is both a violation of a particular law, rule or regulation and presents a substantial and specific danger to public health or safety.
The law is presently so narrow and restrictive it fails to protect many employees – health care workers, factory workers, grocery store and food service workers, nursing home staff, and more – who risk their livelihoods if they complain of unsafe conditions or fraud. Under the law, such employees can be fired with no recourse. Many are afraid to complain because of retaliation.
Proposed Changes to the Law
What can be done to address these problems with the law? It can be amended. In fact, there are bills before the Legislature now to change the law to make sure it does protect whistleblowers. The two bills are A5631A and S4396A.
The changes to the law would:
- Protect a whistleblower who complains of employer conduct which she/he reasonably believes is in violation of a law, rule or regulation, or poses a substantial and specific danger to the public health or safety;
- Protect independent contractors as well as employees;
- Add front pay as a remedy in lieu of reinstatement;
- Add punitive damages as a remedy, if the violation was willful, malicious or wanton.
It is imperative that the Legislature and the Governor ensure that the above amendments are immediately passed and enacted.
New York has been and continues to be the state hit hardest by COVID-19. The changes to Labor Law Section 740 are necessary to effectuate now to protect whistleblowers from retaliation given the risks to public health and safety presented by the pandemic. There will be other situations – after this pandemic – that will occur in which employers engage in conduct that endangers public health or safety or is unlawful.
It is in the public interest – and imperative – to protect public health and safety, by ensuring these changes to the law are enacted to protect those who are brave enough to come forward and report unsafe conditions.