In times of crisis, employees often raise concerns about public health or safety or about fraud, waste, and abuse. Under current New York law, however, employees who blow the whistle on such conduct are not protected. Worse, the current law creates a false impression of protection where none exists.
Put simply: By blowing the whistle, an employee self-identifies, and the employer can simply fire the employee — and the employee has no recourse.
During the COVID-19 crisis, essential workers on the front lines have been speaking out against unsafe conditions — and getting fired as a result. Here are some real-life examples:
Workers at food stores and suppliers complain to their bosses that they do not have adequate masks and gloves, but they are required in overcrowded stores to help customers who lack protection.
Nursing home staff and food service workers report to their bosses that the facility is unsafe because of insufficient personal protection equipment and inadequate sanitizing of areas with sick residents.
Food delivery workers complain that they are required to get signatures from customers accepting orders, though the workers have zero or inadequate personal protection.
An employee complains that the employer is reporting false data about the success of one of its programs to obtain additional financial support from private funders.
In each of these examples, the workers have no protection under current New York law. Complaining about dangers to themselves and others — or about outright fraud — jeopardizes their jobs.
Employees trying to do the right thing are rarely protected under Section 740 of the state Labor Law (the so-called whistleblower protection law enacted in 1984) — more accurately called the “whistleblower unprotection law.” That law protects an employee from retaliation only when the employee complains of employer conduct, that, first, is a violation of a law, rule or regulation, and that, second, “creates and presents a substantial and specific danger to the public health or safety.” Moreover, the employee must be 100% correct with respect to both of those requirements.
Thus, a health care worker who makes a reasonable good-faith complaint about employer conduct that is unsafe for the employee or the general public can be fired without recourse, unless the employee can show that the employer’s conduct not only “presents a substantial and specific danger to the public health or safety” but also “violates a law, rule, or regulation.” Likewise, an employee who makes a reasonable good-faith complaint about an employer’s illegal conduct has no protection unless the conduct also presents a danger to public health or safety.
Even worse, in a case involving an engineer who warned that he and his coworkers were being exposed to excessive radiation at a nuclear reactor, the Court of Appeals upheld the employee’s termination because the employee could not prove that the radiation levels actually were unlawfully high; his reasonable good-faith belief was insufficient.
The state Legislature is aware of this problem and knows how to fix it. Last year, bills were proposed that would:
Expand protection to cover a whistleblower who reasonably believes that the employer’s conduct either violates any law, rule, or regulation, or poses a substantial and specific danger to the public health or safety.
Extend protection to independent contractors as well as employees.
John Beranbaum is president of NELA/NY, the New York affiliate of the National Employment Lawyers Association.
Add pay-in-lieu-of-reinstatement, emotional distress damages, and liquidated/punitive damages if an employer’s conduct is willful, malicious, or wanton.
The Covid-19 pandemic is today’s crisis; other crises will follow. Other situations will occur in which employers engage in conduct that endangers public health or safety or is unlawful. Protecting employees who bravely blow the whistle in such circumstances is the least we can do to serve the public interest. Now is the time to fix this antiquated statute and add long-overdue protections for brave employees.