Most individuals are familiar with stories about whistleblowers, including:
- The ones who brought down President Nixon, Bob Woodward, and Carl Bernstein in the Watergate scandal;
- The White House staffer who was the key witness in Bill Clinton’s impeachment scandal, Linda Tripp;
- The whistleblower who helped bring down Enron in the early 2000’s, Sherron Watkins.
Although federal laws protect whistleblowers, there may be some state-specific information and laws that may apply, including in New York. The following sections will review Whistleblowing in New York State.
If an individual has any questions regarding New York whistleblower laws, they should consult with a local New York attorney. A New York whistleblower lawyer can help both employers and employees with whistleblowing cases.
What Is Whistleblowing?
Whistleblowing occurs when an employee blows the whistle on an employer’s illegal or unethical behavior. A whistleblower blows the whistle by reporting their employer to the appropriate commission or authorities, which typically includes a law enforcement agency.
A whistleblower cannot legally be terminated for their actions because specific whistleblowing laws protect them. An employer is prohibited from retaliating against a whistleblower employee by terminating them or denying them benefits.
The most common situations in which whistleblowing occurs include:
- The employer violates public health laws, which leads to illness or death;
- The employer violates workplace safety laws;
- The employer violates hiring and firing laws;
- The employer is practicing discrimination against a protected class or activity;
- Mismanagement of funds;
- Abuse of authority.
What Is a Whistleblower?
A whistleblower is an individual who reveals illegal activities by their employer or by the government. In the examples mentioned above, Deep Throat was a reporter who revealed the Nixon administration’s involvement in the Watergate scandal.
Linda Tripp secretly recorded private conversations between President Clinton and Monica Lewinsky, which helped lead to the impeachment of Bill Clinton. Sherron Watkins was the former Vice President of Corporate Development at Enron who helped reveal a massive accounting fraud by Enron.
Whistleblowers are important individuals because they assist in holding government officials and corporations accountable. In each of the previous examples, there was some type of abuse of power which was brought to light so justice could be sought.
It is not always easy for the whistleblower to come forward with information on powerful individuals and corporations. This is why whistleblower protections were put into place so that the negative consequences the whistleblower may face would be minimized.
What Rights Do Whistleblowers Have?
Although a whistleblower may be protected, they can still be terminated from their position for reasons that are not related to their whistleblowing. An example of this type of situation is when a whistleblower has a history of tardiness or absences.
In these instances, an employer is permitted to legally terminate the individual’s employment without violating any whistleblower laws. As previously noted, there are federal laws that protect employees who speak up about employers who are breaking the law.
The employee might be terminated solely because of their whistleblowing, and there were no other valid reasons for their termination. If this is the case, they may have the right to sue their employer for wrongful termination in New York. It is important to note that this applies even when the employee reports actions by the employer that the employee reasonably believed were illegal, even if they actually were not.
What Are Whistleblower Protections in New York?
Unfortunately, in many cases, whistleblowers face negative consequences for attempting to do the right thing. An employer may retaliate against them by terminating them or engaging in other illegal workplace activities, such as harassment. This is where whistleblower protections come in. The laws which protect whistleblowers were enacted in the 1800’s during the Lincoln administration.
There are federal protections available as well as state protections. Under New York labor laws, the State of New York is an at-will employment state. This means that a New York employee may be terminated at any time and for any reason. Over the years, however, several exceptions have been made.
For example, an employee cannot be terminated in retaliation for filing a discrimination claim against their employer. Additionally, state laws in New York prohibit an employer from terminating an employee for being a whistleblower.
Specifically, New York statutes protect employees who engage in the following actions:
- Making a complaint;
- Instituting a case;
- Testifying in a case against an employer for a violation of labor laws. The complaint must be made either to the New York Commissioner of Labor or to the employer; or
- Taking action to protect the health and safety of the public. Only actions which may constitute a substantial and specific danger to public health or safety apply.
The employer’s illegal activity must be disclosed to either a supervisor or a public body, including:
- A judge;
- Law enforcement;
- An administrative agency;
- Other public bodies.
If the employee discloses the activity to a public body, that employee must have first disclosed the illegal activity to their supervisor. The employee must also provide the employer with reasonable time to remedy the issue.
In addition, an employee is protected if they provide testimony to a public body regarding their employer’s alleged illegal activity, so long as that activity specifically relates to a specific danger to public safety and health.
Employees are also protected from retaliatory discharge if they refuse to participate in the illegal activity, which poses a substantial risk to public health and safety. There are also whistleblower protections which are available in certain specific industries, including:
- Healthcare;
- Civil service;
- Commercial goods;
- Transportation;
- Construction;
- Non-profit corporations;
- Nursing homes;
- Schools;
- Various other industries.
It is important to note an individual may come forward with a whistleblower claim, and their employer may retaliate against them. If so, they may only have 3 years to file their complaint for retaliation. If an individual waits longer than three years, their opportunity to recover may be barred.
How Does Someone Become a Whistleblower?
In the majority of cases, being a whistleblower is not as glamorous as that which is seen on television. There are no prerequisites for how an individual becomes a whistleblower.
There is also no timeline to follow. In some cases, becoming a whistleblower is as simple as reporting on corporate or government abuses. These reports do not necessarily have to be public.
Reporting illegal activity to a human resources department may be considered whistleblowing, as well as providing information to a reporter, a coworker, or a lawyer. So long as the individual is attempting to make the illegal activity known in order to prevent it from continuing, it may be considered whistleblowing.
There may be some procedural requirements that the employee must follow if they wish to ensure that they are protected under state or federal whistleblower protection statutes. The best way to determine how to share information regarding an employer’s illicit activity is to consult with an attorney prior to taking action in order to ensure that the employee is protected.
What Is the Reward of a Whistleblower?
In whistleblower cases, the whistleblower can receive an award between 10% and 30% of monetary sanctions that are collected. Under the New York False Claims Act and the Federal False Claims Act, a whistleblower can receive 15 to 30% of the amount that is recovered in a whistleblower’s qui tam lawsuit.
Do You Need a Lawyer for Help With New York Whistleblower Rights?
It is very important to have the assistance of a New York wrongful termination lawyer for any whistleblower issues you may be facing. Although New York is an at-will employment state, there are still protections available if you report your employer’s illegal activity or participate in an investigation.
If you believe you may become a whistleblower, it may be necessary to take some steps to protect your interests. The best way to do so is to consult with an attorney who can assist you with determining the best way to come forward with your allegations. Your lawyer can also assist you with a retaliation claim if your employer retaliates against you for whistleblowing.
