N.Y. Labor Law § 740: Retaliatory action by employers; prohibition

§ 740. Retaliatory action by employers; prohibition. 1. Definitions.

For purposes of this section, unless the context specifically indicates

otherwise:

(a) "Employee" means an individual who performs services for and under

the control and direction of an employer for wages or other

remuneration, including former employees, or natural persons employed as

independent contractors to carry out work in furtherance of an

employer's business enterprise who are not themselves employers.

(b) "Employer" means any person, firm, partnership, institution,

corporation, or association that employs one or more employees.

(c) "Law, rule or regulation" includes: (i) any duly enacted federal,

state or local statute or ordinance or executive order; (ii) any rule or

regulation promulgated pursuant to such statute or ordinance or

executive order; or (iii) any judicial or administrative decision,

ruling or order.

(d) "Public body" includes the following:

(i) the United States Congress, any state legislature, or any elected

local governmental body, or any member or employee thereof;

(ii) any federal, state, or local court, or any member or employee

thereof, or any grand or petit jury;

(iii) any federal, state, or local regulatory, administrative, or

public agency or authority, or instrumentality thereof;

(iv) any federal, state, or local law enforcement agency,

prosecutorial office, or police or peace officer;

(v) any federal, state or local department of an executive branch of

government; or

(vi) any division, board, bureau, office, committee, or commission of

any of the public bodies described in subparagraphs (i) through (v) of

this paragraph.

(e) "Retaliatory action" means an adverse action taken by an employer

or his or her agent to discharge, threaten, penalize, or in any other

manner discriminate against any employee or former employee exercising

his or her rights under this section, including (i) adverse employment

actions or threats to take such adverse employment actions against an

employee in the terms of conditions of employment including but not

limited to discharge, suspension, or demotion; (ii) actions or threats

to take such actions that would adversely impact a former employee's

current or future employment; or (iii) threatening to contact or

contacting United States immigration authorities or otherwise reporting

or threatening to report an employee's suspected citizenship or

immigration status or the suspected citizenship or immigration status of

an employee's family or household member, as defined in subdivision two

of section four hundred fifty-nine-a of the social services law, to a

federal, state, or local agency.

(f) "Supervisor" means any individual within an employer's

organization who has the authority to direct and control the work

performance of the affected employee; or who has managerial authority to

take corrective action regarding the violation of the law, rule or

regulation of which the employee complains.

2. Prohibitions. An employer shall not take any retaliatory action

against an employee, whether or not within the scope of the employee's

job duties, because such employee does any of the following:

(a) discloses, or threatens to disclose to a supervisor or to a public

body an activity, policy or practice of the employer that the employee

reasonably believes is in violation of law, rule or regulation or that

the employee reasonably believes poses a substantial and specific danger

to the public health or safety;

(b) provides information to, or testifies before, any public body

conducting an investigation, hearing or inquiry into any such activity,

policy or practice by such employer; or

(c) objects to, or refuses to participate in any such activity, policy

or practice.

3. Application. The protection against retaliatory action provided by

paragraph (a) of subdivision two of this section pertaining to

disclosure to a public body shall not apply to an employee who makes

such disclosure to a public body unless the employee has made a good

faith effort to notify his or her employer by bringing the activity,

policy or practice to the attention of a supervisor of the employer and

has afforded such employer a reasonable opportunity to correct such

activity, policy or practice. Such employer notification shall not be

required where: (a) there is an imminent and serious danger to the

public health or safety; (b) the employee reasonably believes that

reporting to the supervisor would result in a destruction of evidence or

other concealment of the activity, policy or practice; (c) such

activity, policy or practice could reasonably be expected to lead to

endangering the welfare of a minor; (d) the employee reasonably believes

that reporting to the supervisor would result in physical harm to the

employee or any other person; or (e) the employee reasonably believes

that the supervisor is already aware of the activity, policy or practice

and will not correct such activity, policy or practice.

4. Violation; remedy. (a) An employee who has been the subject of a

retaliatory action in violation of this section may institute a civil

action in a court of competent jurisdiction for relief as set forth in

subdivision five of this section within two years after the alleged

retaliatory action was taken.

(b) Any action authorized by this section may be brought in the county

in which the alleged retaliatory action occurred, in the county in which

the complainant resides, or in the county in which the employer has its

principal place of business. In any such action, the parties shall be

entitled to a jury trial.

(c) It shall be a defense to any action brought pursuant to this

section that the retaliatory action was predicated upon grounds other

than the employee's exercise of any rights protected by this section.

5. Relief. In any action brought pursuant to subdivision four of this

section, the court may order relief as follows:

(a) an injunction to restrain continued violation of this section;

(b) the reinstatement of the employee to the same position held before

the retaliatory action, or to an equivalent position, or front pay in

lieu thereof;

(c) the reinstatement of full fringe benefits and seniority rights;

(d) the compensation for lost wages, benefits and other remuneration;

(e) the payment by the employer of reasonable costs, disbursements,

and attorney's fees;

(f) a civil penalty of an amount not to exceed ten thousand dollars;

and/or

(g) the payment by the employer of punitive damages, if the violation

was willful, malicious or wanton.

6. Employer relief. A court, in its discretion, may also order that

reasonable attorneys' fees and court costs and disbursements be awarded

to an employer if the court determines that an action brought by an

employee under this section was without basis in law or in fact.

7. Existing rights. Nothing in this section shall be deemed to

diminish the rights, privileges, or remedies of any employee under any

other law or regulation or under any collective bargaining agreement or

employment contract.

8. Publication. Every employer shall inform employees of their

protections, rights and obligations under this section, by posting a

notice thereof. Such notices shall be posted conspicuously in easily

accessible and well-lighted places customarily frequented by employees

and applicants for employment.