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Whistleblower Retaliation

Continuing with our employment law blog series about common misunderstandings of popular employment law terms, this week we discuss “whistleblower retaliation,” specifically as the term applies in New York.

Like hostile work environment and wrongful termination, “whisteblower” is a term of art, meaning it has a very specific meaning.  Many employees believe that whisteblowing encompasses a broad range of complaints about workplace issues.  In New York, whisteblower protection covers only a few types of employee activities.  Each is discussed below.

The primary New York whisteblower statute is codified in the Labor Law, Sections 740 and 741.  These laws prohibit employers from retaliating against employees who report an employer’s violation of a law or rule or other illegal practice, which causes a substantial risk to the public’s health or safety.  Thus, the law has two specific requirements which narrow its application in many cases.  First, the employer must be doing something illegal.  So, if the employer is not doing something which violates a law, rule, or regulation, then whistelblower protection is not activated.  But even if the employer is acting illegally, the activity must also cause a danger to the public.  In other words, if the employer is breaking the law but the action does not cause a danger to the public, whistleblower protection is not invoked.

Labor Law 741 applies only to health care.  It provides protection to employees who report a health care provider’s actions which constitute improper patient care. So, again this whisteblower provision is very narrow as it only covers health care employers.

The Federal “Whistleblower” law generally refers to the False Claims Act.  The Act provides protections to individuals who disclose a government contractor who has submitted fraudulent claims to the government.  These lawsuits are usually called qui tam actions.  Like State law, the False Claim Act’s coverage is very narrow.

The protections outlined above are not all encompassing.  There are many other statutes which provide retaliation protection, but are not generally referred to as whistleblower laws.  For instance, the Federal, State and Local anti-discrimination laws provide retaliation protection to employees who oppose or complain about discrimination in the workplace.  Similarly, Federal and State labor laws (such as OSHA and the minimum wage statutes) provide protections for employees who complain about an employer’s violation of the labor laws.

In addition, if several employees join together to complain about working conditions or if one employee complains about workplace conditions on behalf of other employees, the National Labor Relations Act’s “concerted activity” provision may provide workplace protections for those employees.

Because whistleblower protection is very limited, if you are concerned about a practice of your employer or if you have complained about a practice of your employer which you believe is improper, you should consult an employment lawyer, such as the lawyers at Famighetti & Weinick, PLLC.  We are available by phone at 631-352-0050 or on the web at http://linycemploymentlaw.com.

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