§ 740 — Retaliatory action by employers; prohibition

New York § 740

• Jurisdiction: New York
• Law LAB: Labor
• Art. 20-C: Retaliatory Action By Employers

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§ 740. Retaliatory action by employers; prohibition. 1. Definitions.\nFor purposes of this section, unless the context specifically indicates\notherwise:\n (a) "Employee" means an individual who performs services for and under\nthe control and direction of an employer for wages or other\nremuneration, including former employees, or natural persons employed as\nindependent contractors to carry out work in furtherance of an\nemployer's business enterprise who are not themselves employers.\n (b) "Employer" means any person, firm, partnership, institution,\ncorporation, or association that employs one or more employees.\n (c) "Law, rule or regulation" includes: (i) any duly enacted federal,\nstate or local statute or ordinance or executive order; (ii) any rule or\nregulation promulgated pursuant to such statute or ordinance or\nexecutive order; or (iii) any judicial or administrative decision,\nruling or order.\n (d) "Public body" includes the following:\n (i) the United States Congress, any state legislature, or any elected\nlocal governmental body, or any member or employee thereof;\n (ii) any federal, state, or local court, or any member or employee\nthereof, or any grand or petit jury;\n (iii) any federal, state, or local regulatory, administrative, or\npublic agency or authority, or instrumentality thereof;\n (iv) any federal, state, or local law enforcement agency,\nprosecutorial office, or police or peace officer;\n (v) any federal, state or local department of an executive branch of\ngovernment; or\n (vi) any division, board, bureau, office, committee, or commission of\nany of the public bodies described in subparagraphs (i) through (v) of\nthis paragraph.\n (e) "Retaliatory action" means an adverse action taken by an employer\nor his or her agent to discharge, threaten, penalize, or in any other\nmanner discriminate against any employee or former employee exercising\nhis or her rights under this section, including (i) adverse employment\nactions or threats to take such adverse employment actions against an\nemployee in the terms of conditions of employment including but not\nlimited to discharge, suspension, or demotion; (ii) actions or threats\nto take such actions that would adversely impact a former employee's\ncurrent or future employment; or (iii) threatening to contact or\ncontacting United States immigration authorities or otherwise reporting\nor threatening to report an employee's suspected citizenship or\nimmigration status or the suspected citizenship or immigration status of\nan employee's family or household member, as defined in subdivision two\nof section four hundred fifty-nine-a of the social services law, to a\nfederal, state, or local agency.\n (f) "Supervisor" means any individual within an employer's\norganization who has the authority to direct and control the work\nperformance of the affected employee; or who has managerial authority to\ntake corrective action regarding the violation of the law, rule or\nregulation of which the employee complains.\n 2. Prohibitions. An employer shall not take any retaliatory action\nagainst an employee, whether or not within the scope of the employee's\njob duties, because such employee does any of the following:\n (a) discloses, or threatens to disclose to a supervisor or to a public\nbody an activity, policy or practice of the employer that the employee\nreasonably believes is in violation of law, rule or regulation or that\nthe employee reasonably believes poses a substantial and specific danger\nto the public health or safety;\n (b) provides information to, or testifies before, any public body\nconducting an investigation, hearing or inquiry into any such activity,\npolicy or practice by such employer; or\n (c) objects to, or refuses to participate in any such activity, policy\nor practice.\n 3. Application. The protection against retaliatory action provided by\nparagraph (a) of subdivision two of this section pertaining to\ndisclosure to a public body shall not apply to an employee who makes\nsuch disclosure to a public body unless the employee has made a good\nfaith effort to notify his or her employer by bringing the activity,\npolicy or practice to the attention of a supervisor of the employer and\nhas afforded such employer a reasonable opportunity to correct such\nactivity, policy or practice. Such employer notification shall not be\nrequired where: (a) there is an imminent and serious danger to the\npublic health or safety; (b) the employee reasonably believes that\nreporting to the supervisor would result in a destruction of evidence or\nother concealment of the activity, policy or practice; (c) such\nactivity, policy or practice could reasonably be expected to lead to\nendangering the welfare of a minor; (d) the employee reasonably believes\nthat reporting to the supervisor would result in physical harm to the\nemployee or any other person; or (e) the employee reasonably believes\nthat the supervisor is already aware of the activity, policy or practice\nand will not correct such activity, policy or practice.\n 4. Violation; remedy. (a) An employee who has been the subject of a\nretaliatory action in violation of this section may institute a civil\naction in a court of competent jurisdiction for relief as set forth in\nsubdivision five of this section within two years after the alleged\nretaliatory action was taken.\n (b) Any action authorized by this section may be brought in the county\nin which the alleged retaliatory action occurred, in the county in which\nthe complainant resides, or in the county in which the employer has its\nprincipal place of business. In any such action, the parties shall be\nentitled to a jury trial.\n (c) It shall be a defense to any action brought pursuant to this\nsection that the retaliatory action was predicated upon grounds other\nthan the employee's exercise of any rights protected by this section.\n 5. Relief. In any action brought pursuant to subdivision four of this\nsection, the court may order relief as follows:\n (a) an injunction to restrain continued violation of this section;\n (b) the reinstatement of the employee to the same position held before\nthe retaliatory action, or to an equivalent position, or front pay in\nlieu thereof;\n (c) the reinstatement of full fringe benefits and seniority rights;\n (d) the compensation for lost wages, benefits and other remuneration;\n (e) the payment by the employer of reasonable costs, disbursements,\nand attorney's fees;\n (f) a civil penalty of an amount not to exceed ten thousand dollars;\nand/or\n (g) the payment by the employer of punitive damages, if the violation\nwas willful, malicious or wanton.\n 6. Employer relief. A court, in its discretion, may also order that\nreasonable attorneys' fees and court costs and disbursements be awarded\nto an employer if the court determines that an action brought by an\nemployee under this section was without basis in law or in fact.\n 7. Existing rights. Nothing in this section shall be deemed to\ndiminish the rights, privileges, or remedies of any employee under any\nother law or regulation or under any collective bargaining agreement or\nemployment contract.\n 8. Publication. Every employer shall inform employees of their\nprotections, rights and obligations under this section, by posting a\nnotice thereof. Such notices shall be posted conspicuously in easily\naccessible and well-lighted places customarily frequented by employees\nand applicants for employment.\n