Effective January 26, 2022, New York will greatly expand whistleblower protections provided to employees and independent contractors, creating new compliance challenges and avenues of liability for employers. Senate Bill S4394A (the “Amendment”), recently signed into law by Governor Hochul on October 28, 2021, amends New York’s whistleblower protection law (codified at Section 740 of New York’s Labor Law) in four principal ways:
· Expanding the definition of protected activity under the law;
· Expanding the scope of individuals entitled to whistleblower protection;
· Expanding the definition of adverse actions under the law; and
· Watering down the requirement that whistleblowers notify their employer of the challenged conduct prior to reporting it to law enforcement or other government bodies.
Most importantly, the amendment expands the scope of protected activity under the whistleblower law. Previously, a whistleblower was protected only when disclosing employer conduct that violated a law, rule, or regulation and created a substantial and specific danger to public health or safety or constituted health care fraud. Now, whistleblowers will also have protection when reporting employer conduct that the whistleblower reasonably believes violates a law, rule, or regulation or is a substantial and specific damage to public health or safety. What constitutes “reasonable belief” will likely be determined by future case law, but will likely include both objective and subjective...
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