As someone who has tried more than his share of cases, I have come to the conclusion that retaliation claims are often more difficult to defend than plain discrimination claims. It’s not unusual for a jury to find that an employer did not discriminate against an employee, but that the employer nonetheless retaliated against the employee for complaining about discrimination. For this reason, New York employers should be concerned about the enhanced whistleblower protections that went into effect in New York on January 26, 2022.
Among other things, the definition of “employee” in Labor Law 740 now includes former employees and independent contractors. Thus, giving a poor reference to an ex-employee could support a charge of retaliation. The statute of limitations has also been extended from one to two years. In addition to injunctive relief, reinstatement, back pay and attorney’s fees, the law now entitles plaintiffs to jury trials and recovery of front pay and punitive damages.
Under the revised law, a retaliatory action is no longer limited to actual adverse employment actions (for example, discharges, suspensions or demotions), but also any “actions or threats to take such action that would adversely impact a former employee’s current or future employment.”
The biggest change to New York’s whistleblower protections is expansion of the definition of what constitutes protected activity. Previously, an employee engaged in protected activity when he disclosed or threatened...
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