§ 75-B — Retaliatory action by public employers

New York § 75-B

• Jurisdiction: New York
• Law CVS: Civil Service
• Title B: Removal and Other Disciplinary Proceedings
• Art. 5: Personnel Changes

Text

§ 75-b. Retaliatory action by public employers. 1. For the purposes of\nthis section the term:\n (a) "Public employer" or "employer" shall mean (i) the state of New\nYork, (ii) a county, city, town, village or any other political\nsubdivision or civil division of the state, (iii) a school district or\nany governmental entity operating a public school, college or\nuniversity, (iv) a public improvement or special district, (v) a public\nauthority, commission or public benefit corporation, or (vi) any other\npublic corporation, agency, instrumentality or unit of government which\nexercises governmental power under the laws of the state.\n (b) "Public employee" or "employee" shall mean any person holding a\nposition by appointment or employment in the service of a public\nemployer except judges or justices of the unified court system and\nmembers of the legislature.\n (c) "Governmental body" shall mean (i) an officer, employee, agency,\ndepartment, division, bureau, board, commission, council, authority or\nother body of a public employer, (ii) employee, committee, member, or\ncommission of the legislative branch of government, (iii) a\nrepresentative, member or employee of a legislative body of a county,\ntown, village or any other political subdivision or civil division of\nthe state, (iv) a law enforcement agency or any member or employee of a\nlaw enforcement agency, or (v) the judiciary or any employee of the\njudiciary.\n (d) "Personnel action" shall mean an action affecting compensation,\nappointment, promotion, transfer, assignment, reassignment,\nreinstatement or evaluation of performance.\n 2. (a) A public employer shall not dismiss or take other disciplinary\nor other adverse personnel action against a public employee regarding\nthe employee's employment because the employee discloses to a\ngovernmental body information: (i) regarding a violation of a law, rule\nor regulation which violation creates and presents a substantial and\nspecific danger to the public health or safety; or (ii) which the\nemployee reasonably believes to be true and reasonably believes\nconstitutes an improper governmental action. "Improper governmental\naction" shall mean any action by a public employer or employee, or an\nagent of such employer or employee, which is undertaken in the\nperformance of such agent's official duties, whether or not such action\nis within the scope of his employment, and which is in violation of any\nfederal, state or local law, rule or regulation.\n 3. (a) Where an employee is subject to dismissal or other disciplinary\naction under a final and binding arbitration provision, or other\ndisciplinary procedure contained in a collectively negotiated agreement,\nor under section seventy-five of this title or any other provision of\nstate or local law and the employee reasonably believes dismissal or\nother disciplinary action would not have been taken but for the conduct\nprotected under subdivision two of this section, he or she may assert\nsuch as a defense before the designated arbitrator or hearing officer.\nThe merits of such defense shall be considered and determined as part of\nthe arbitration award or hearing officer decision of the matter. If\nthere is a finding that the dismissal or other disciplinary action is\nbased solely on a violation by the employer of such subdivision, the\narbitrator or hearing officer shall dismiss or recommend dismissal of\nthe disciplinary proceeding, as appropriate, and, if appropriate,\nreinstate the employee with back pay, and, in the case of an arbitration\nprocedure, may take other appropriate action as is permitted in the\ncollectively negotiated agreement.\n (b) Where an employee is subject to a collectively negotiated\nagreement which contains provisions preventing an employer from taking\nadverse personnel actions and which contains a final and binding\narbitration provision to resolve alleged violations of such provisions\nof the agreement and the employee reasonably believes that such\npersonnel action would not have been taken but for the conduct protected\nunder subdivision two of this section, he or she may assert such as a\nclaim before the arbitrator. The arbitrator shall consider such claim\nand determine its merits and shall, if a determination is made that such\nadverse personnel action is based on a violation by the employer of such\nsubdivision, take such action to remedy the violation as is permitted by\nthe collectively negotiated agreement.\n (c) Where an employee is not subject to any of the provisions of\nparagraph (a) or (b) of this subdivision, the employee may commence an\naction in a court of competent jurisdiction under the same terms and\nconditions as set forth in article twenty-C of the labor law.\n 4. Nothing in this section shall be deemed to diminish or impair the\nrights of a public employee or employer under any law, rule, regulation\nor collectively negotiated agreement or to prohibit any personnel action\nwhich otherwise would have been taken regardless of any disclosure of\ninformation.\n