Can An Employer In New York Fire An Executive Or A Professional For Reporting Or Opposing Unlawful Activity By The Employer?

This article will address:

• The protections that, in New York, whistleblower executives and professionals have against retaliatory discharge.

• Retaliatory actions by employers against executives and professionals that are prohibited by New York law.

• Remedies available to employees in a lawsuit for retaliatory firing and the limitations period for filing such a lawsuit.

No.  In New York State, employers are prohibited from firing, or taking other adverse actions against, an executive or a professional because the executive or professional discloses or threatens to disclose to a supervisor or to a public body, provides information to or testifies before a public body about, objects to, or refuses to take part in, an activity, policy or practice of the employer that the executive or professional reasonably believes violates a federal, state, or local law, rule, or regulation or that the executive or professional reasonably believes poses a substantial and specific danger to the public health or safety.

Under New York law, as an executive or a professional, you are considered an employee. Consequently, as an executive or a professional in New York, you are safeguarded by the same anti-discrimination and anti-retaliation statutes that protect other employees.

Under the New York Whistleblower Law (the “Whistleblower Law”), N.Y. Labor Law § 740, it is unlawful for an employer or an employer’s agent, among other ” ʹ[r]etaliatory action[s],ʹ ” to discharge, suspend, demote, penalize, threaten, or discriminate in any other manner against any executive, professional, or other employee or former employee because the employee, either within or outside the scope of his or her job duties, takes any of the following actions: 

• Discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of a federal, state, or local law, rule, or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety;
• Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such activity, policy or practice by the employer; or
• Objects to, or refuses to participate in, any such activity, policy, or practice by the employer.

What Retaliatory Actions Is An Employer In New York Barred From Taking?

A ” ʹ[r]etaliatory actionʹ ” barred by the New York Whistleblower Law means an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under the Whistleblower Law, including:

• Adverse employment actions or threats to take such adverse employment actions against an employee in the terms or conditions of employment, such as firing, suspension, or demotion;
• Actions or threats to take such actions that would negatively impact a former employee’s current or future employment; or
• Contacting, or threatening to contact, U.S. immigration authorities or otherwise reporting or threatening to report, to a federal, state, or local agency, an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.

When Must An Executive Or Professional, To Be Protected Against Retaliation For Blowing The Whistle On The Employer’s Suspected Unlawful Activity, First Afford The Employer Notice Of, And An Opportunity To Cure, Its Activity?

With certain exceptions, the protection against retaliation that the New York Whistleblower Law provides for making disclosure to a public body applies only where the employee has made a good faith effort to notify his or her employer by bringing the activity, policy or practice to the attention of a supervisor of the employer and has afforded such employer a reasonable opportunity to correct that activity, policy or practice.

May An Employer Retaliate Against An Executive For Discovering, Or Reporting To The Employer, The Very Types Of Suspected Unlawful Activity That It Is The Executive’s Job To Uncover And To Report On?

The Whistleblower Law makes it unlawful for a company or a company’s agent to retaliate against any executive, professional, or other employee or ex-employee regardless of whether the employee’s job duties include uncovering, or reporting to the company, specified activities, policies, or practices which may be unlawful.

For example, the New York Stop Hacks and Improve Electronic Data Security Act, N.Y. Gen Bus. Law § 899-bb (the “New York SHIELD Act”) requires employers in possession of New York residents’ private information to develop, implement, and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information. An employer in New York is prohibited from retaliating against the employer’s cybersecurity officer for disclosing, to a supervisor, the employer’s failures or refusals to create, enforce, or maintain reasonable cybersecurity safeguards, which failures or refusals the cybersecurity officer reasonably believes to be in violation of the New York SHIELD Act. Such retaliation by the employer against its cybersecurity officer is unlawful even though the cybersecurity officer’s job duties include monitoring the personal information of the employer’s customers in order to detect and respond to or defend against external, adversarial cyberthreats.

Within What Period Of Time Must An Executive Or A Professional In New York Sue His Or Her Employer For Retaliation?

Under the New York Whistleblower Law, an employee must file any lawsuit against his or her employer within two years after the alleged retaliatory action was taken.

What Is The Value Of My Cause Of Action For Retaliatory Termination Against My Employer In New York?

Remedies available to an executive or a professional in a lawsuit brought under the New York Whistleblower Law include, among other things, reinstatement; front pay; compensation for lost wages and benefits; payment by the employer of reasonable attorney’s fees, costs, and disbursements; a civil penalty of up to $10,000; and punitive damages. In a Whistleblower Law action, the employee and the employer each have a right to a trial by jury.

For a more detailed discussion of the value, under various statutes, of employees’ claims for wrongful termination against their employers in New York, see here.

Can My Employer Fire Me Because I Reported Or Opposed An Activity, Policy Or Practice Of The Employer That I Reasonably, But Mistakenly, Believed To Be Unlawful?

In New York, it is unlawful for a company to fire, or to take other adverse actions against, an executive or a professional for disclosing, objecting to, or refusing to participate in an activity, policy, or practice of the employer that the executive or professional believes to be unlawful, even if the executive or professional’s belief is erroneous. For the executive’s or professional’s reporting of, or opposition to, the employer’s activity, policy, or practice to be protected conduct, the executive’s or professional’s belief (that the employer’s activity, policy, or practice is unlawful) need only be reasonable.

If you are an executive or a professional in the New York City metro area and you believe that you have been wrongfully terminated, that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call New York City Wrongful Termination Attorney David S. Rich at (347) 941-0760 today.