New York State Expands Protection from Retaliation for Private Sector Employees

On October 29, 2021, New York Governor Kathy Hochul signed legislation (S.4394-A/A.5144-A) which enhances protections for private sector employees from retaliation by their employers for reporting illegal or dangerous business activities.  According to Senator Jessica Ramos, a sponsor of the bill, the new law “expands the same whistleblower protections available to public employees to workers in the private sector.”

Pursuant to this legislation, the definition of “employee” under Section 740 of the labor law has been expanded to include, for purposes of anti-retaliatory measures, independent contractors and former employees.  In order to better protect former employees who may have been retaliated against post-employment, the statute of limitations for retaliation has been extended to two years, and the definition of retaliation now includes “actions or threats to take such actions that would adversely impact a former employee’s current or future employment.” Contacting or threatening to contact United States immigration authorities regarding an employee’s suspected citizenship or immigration status, or that of an employee’s family or household member, also now constitutes retaliation.  Senator Ramos has stated that the extension of anti-retaliation protection for independent contractors is intended to address “a troubling national trend of efforts to misclassify workers.”

The whistleblower activity protected under law has also been expanded.  Prior to this legislation, employees in the private sector needed to prove that an actual violation of law had taken place to sustain a cause of action for retaliation, and that such violation created a danger to public health or safety.  Now, however, the law provides that a whistleblower need only “reasonably believe” that an employer’s activity, policy, or practice violates the law or poses a danger to public health and safety.  The new legislation will protect whistleblowers regardless of whether they were acting within the scope of their job duties when reporting their employer’s dangerous or illegal activity.

These amendments to New York’s anti-retaliation laws will go into effect in January 2022.

Ethan Krasnoo, PartnerThis article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Ethan Krasnoo who counsels both companies and individuals on employment matters. Mr. Krasnoo is admitted to practice law in New York. Attorney Advertising.

Research contributed by Anna Beckelman.