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New York Whistleblower & Electronic Monitoring Laws

January 6, 2022

On October 28, 2021, New York Governor Kathy Hochul signed into law a bill that significantly expanded New York’s whistleblower protection law. The amended law is set to come into effect after 90 days, on January 26, 2022.

In addition, less than two weeks later, on November 8, 2021, Governor Hochul signed a bill that amended the New York State’s Civil Rights Law which requires private employers to notify their employees of electronic monitoring and obtain their written acknowledgment that they were informed of such monitoring. This amendment is set to come into effect after 180 days, on May 7, 2022. This article will explain both amendments and how the preexisting laws have been changed.

Whistleblower Amendment

Governor Hochul amended New York Labor Law, which protects employees from retaliatory action by their employer, when the employee reports or “whistleblows” when their employer has violated employment or labor laws. A. Broader Protections

The definition of employee has been changed to include former employees and independent contractors. Therefore, these employee categories to be covered by the law and are now allowed to bring whistleblower claims.

A.   Broader Protections

The definition of employee has been changed to include former employees and independent contractors. Therefore, these employee categories to be covered by the law and are now allowed to bring whistleblower claims.

• The scope of protected conduct by the employee has been expanded. Prior to the amendment, employees only received protection from retaliation if they were able to show an actual violation. Now, employees who “reasonably believes” violates a law or poses a substantial and specific danger to public health or safety.

• Employees can now report any federal, state, or local department of an executive branch of government and any division, board, bureau, office, committee, or commission of any of the public bodies. Previously, employees could only report to elected governmental body, a court, a governmental agency, or law enforcement agency.

• Retaliation now includes adverse actions or threats to act in a way that impact a former employee’s current or future employment. Another prohibited act is actually contacting or threatening to contact immigration authorities, or otherwise reporting or threatening to report suspected illegal immigration status.

• An employee’s ability to report a violation of a law, rule or regulation has been expanded to now include executive orders, and judicial or administrative decisions, rulings, and orders.

• Previously, employees were required to inform their employer of an alleged violation and then give the employer a reasonable opportunity to correct the supposed violation before reporting it to the public. Now, employees who have acted in good faith are protected.

• For example, an employee does not have to inform their employer if they reasonably believe that such notification will lead to acts such as destruction of evidence, physical harm, and more. Employees also do not have to notify their employer if they reasonably believe that they are already aware of the violation and will have no intention of correcting it.

B.   Statute of Limitations, Jury Trial

• The statute of limitations for a civil action has increased from one year to two, beginning when the retaliatory action occurs. Furthermore, employees now have the right to a jury trial in civil suits.

C.   Remedies

• Additional remedies have been added to the statute. As opposed to being reinstated, employees may instead obtain recovery in the form of front pay. As for a civil penalty, employers may have to pay up to $10,000 and may also be subject to punitive damages for willful violations of the law.

D.   Posting Notice

• Finally, the amendment states that employers are required to post a notice, where it will be seen by both employees and employment applicants, that informs them of their rights under the law.

Electronic Monitoring Amendment

Employers may have legitimate needs for electronic monitoring, such as investigating misconduct, analyzing employee electronic use, and mitigating unlawful technology usage. Under the electronic monitoring amendment, employers of any size must provide advance notice to its employees of any monitoring of telephone or e-mail communications, or internet usage with the use electronic device, such as a computer, telephone, radio, or other systems.

Because the amendment broadly covers many types of electronic monitoring, the amendment states that the advance notice must be given at hiring. However, exceptions are provided for electronic processes that are performed for computer maintenance or protection or monitoring that is not targeted to a specific individual. The amendment permits employers to provide the notice in writing or electronically to each employee and then receive the employee’s acknowledgment in either a written or electronic form as well. Further, employers must post a workplace notice in a place that is available for all employees who may subject to monitoring to view.

Violation of the electronic monitoring law may be subject to prosecution with penalties of $500 for a first-time offense, $1,000 for a second time offense, and $3,000 for each offense thereafter.

Conclusion

Both of these amendments recently passed by Governor Hochul are designed to afford more protections for employees. The whistleblower law amendment significantly broadened protected acts, protected parties, and acts that would be considered retaliation, while the electronic monitoring amendment now requires employers to inform their employees of such monitoring and receive a written acknowledgment. Employers must ensure compliance with both of these amendments and re-evaluate their current electronic monitoring practices.

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