Retaliation is hardly a new concept for workers in New York. From key soldiers in New York’s infamous Corleone family, to employees in the administration of former New York Gov. Andrew Cuomo, we have heard allegations of retaliation.
Workplace retaliation consists of proving three elements: (1) that the employee engaged in protected activity; (2) that the employee suffered an adverse employment consequence; and (3) that there exists a causal connection between the two.
Discrimination statues, both state and federal, have long prohibited retaliation for opposing discrimination or participating in the process for addressing claims of discrimination. For decades, however, New York narrowly defined protected whistleblower activity, which resulted in a limited baseline for establishing the element of “protected activity” in order to prove illegal retaliation. That has all changed as a result of a New York law that took effect on Jan. 26, 2022.
Whistleblowers in New York formerly received very limited protection from retaliation because protected activity was very narrowly described, as it required the whistle be blown on an actual violation of the law, and the law needed to be related to health care fraud or public safety.
Under the new law, coverage is available to an employee when they complain about matters they reasonably believe to be an employer’s noncompliance. In addition, employees no longer have to first bring the matter to the employer’s attention in order to allow...
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