When an employer disciplines its employees, let’s say for unsatisfactory performance or misconduct, employees sometimes respond with accusations that the discipline illegitimately occurred in retaliation for conduct protected by law. For example, an employee may claim that the employer imposed discipline due to the employee’s previous expression of a concern relating to the employer’s compliance with law in conducting its business. Although the laws do not prohibit the employer from imposing discipline based on the employee’s performance or misconduct, the laws often do protect the employee’s right to express concerns about compliance with law. Managing such claims requires employers not only to untangle the conflicting factual assertions about the underlying reason for the discipline, but often requires the employer to sort out a complex web of statutes, each with different language and varying requirements for the assertion of a retaliation claim.

As of 2022, New York became one of a number of states that have sought to strengthen the protection of employees’ rights to express concerns about their employers’ compliance with law. Under an amended New York Labor Law Section 740, New York workers may now assert causes of action for alleged retaliation occurring due to complaints about a violation of a “law, rule or regulation.” Now, a violation of Section 740 provides a right to a jury trial, the possibility of punitive damages for willful violations, civil penalties, a...

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