New York State’s Expanded Whistleblower Protection Act: 5 Steps for Employers to Take | Ogletree, Deakins, Nash, Smoak & Stewart, CP

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On January 26, 2022, amendments to the New York Whistleblower Protection Law, codified in Section 740 of the New York Labor Law (NYLL), went into effect. As we previously reported, these amendments significantly expand the scope of Section 740. Although New York employers who also operate in states with extensive private sector whistleblower protection laws, such whether New Jersey, Oregon or Virginia, may not need to make major adjustments. , other employers may wish to consider updating their policies; put in place or improve support structures, including robust and accessible reporting mechanisms and regular training for supervisors, managers and human resources professionals; and identify appropriate resources to investigate complaints. Although the action plan will vary depending on the industry and the size of the employer – and other jurisdictions, if any, in which the employer operates – there are certain elements, actions and measures that employers may wish to explore, as outlined below.

1. Establish or update written codes of conduct

The amendments require employers to “inform employees of their protections, rights and obligations” under the new law by posting a notice “prominently in easily accessible and well-lit places usually frequented by employees and job applicants.” ‘use”. In addition to meeting this minimum posting requirement, employers who have not expressly adopted codes of conduct may wish to update their existing policies to clearly outline their compliance expectations and specifically address the ability employees to report concerns about any “employer activity, policy or practice”. that the employee reasonably believes that he is violating the law, rule or regulation or that he reasonably believes that he presents a substantial and specific danger to public health or safety. Employers who already have policies in place may wish to issue periodic reminders of the existence of such policies. Employers may also wish to provide regular training on these policies to all employees at or near the time of hire, and at annual or other intervals.

Taking proactive steps to establish or strengthen existing compliance policies can facilitate an employer’s ability to rebut claims that an employee is exempt from the requirement to make “a good faith effort to inform their employer by wearing the activity, policy or practice to the attention of a supervisor” because “the employee reasonably believes that reporting to the supervisor would result in the destruction of evidence or other concealment of the activity, policy or practice” or because “the employee reasonably believes that the supervisor already knows about the activity, policy or practice and will not correct that activity, policy or practice.

2. Create robust and accessible reporting mechanisms

Employers looking to strengthen their compliance-focused cultures and avoid liability for whistleblower claims might also want to ensure that their reporting mechanisms are robust and accessible. The law provides that in the absence of certain listed exceptions, an employee must first give notice to “a supervisor” to be entitled to legal protection. It may be appropriate to provide other centralized channels for reporting. Among possible measures, employers may wish to create accessible systems that incentivize reporting persons to provide specific categories of information to facilitate the employer’s ability to more easily identify and take appropriate action. Since the amendments broadly define a “law, rule, or regulation” to include “any federal, state, or local law, ordinance, or executive order duly enacted”, a regulation enacted thereunder, or “any decision, decision or court or administrative order, “The design of intake systems that promote rapid determination of the nature of an investigation and that provide data that can be tracked over time to identify patterns or issues requiring additional attention can help mitigate long-term exposure.

3. Train supervisors, managers and human resources professionals

Because the amendments significantly expand whistleblower protections under NYLL Section 740, employers may also consider training supervisors, managers, and human resources professionals on their obligations under the law. whistleblowers. Provisions that may warrant the attention of these groups include the following:

  • The definition of “employee” now includes not only those who receive a salary, but also “natural persons employed as independent contractors…who are not employers themselves” and former employees.
  • The definition of “retaliatory action” now includes “actions or threats to take such action that would negatively impact a former employee’s current or former employment” as well as “threatening to contact or contact the United States immigration authorities or otherwise report or threaten to report” the actual or suspected immigration status of an employee or a member of an employee’s family or household.
  • The anti-retaliation prohibitions apply whether or not the employee’s conduct is “within the scope of the employee’s duties”.
  • Notification to a supervisor of the allegedly illegal activity, policy or practice constitutes notice for the purposes of the law.

4. Reinforce adherence to documentation and decision-making protocols

Indeed, the amendments highlight the importance of ensuring that supervisors and managers document performance or conduct issues in a timely manner and in accordance with any applicable progressive discipline or other policies. In the absence of an adequate record to substantiate a dismissal or a decision not to promote (or any other adverse action), it may be difficult for an employer to demonstrate that any “retaliatory action was based on grounds other than the exercise by the employee of any [protected] rights.” In addition, employers may wish to emphasize compliance with company protocols requiring human resources personnel or in-house counsel to review contemplated adverse employment actions, particularly terminations, for any recent activity that may give rise to whistleblower claims to ensure that there is documented evidence to support the absence of a causal link between a protected activity and an action detrimental to employment.

5. Identification of appropriate resources to investigate complaints

While the amendments alone may not increase the volume of whistleblower complaints, the law’s expanded scope and additional remedies increase the potential economic and reputational consequences of ignoring or mishandling employee complaints. Therefore, employers may consider appointing additional internal staff who can investigate complaints and regularly train investigative staff to ensure that they will appropriately deal with claims that a reporting party or other interviewee has previously raised concerns about potential violations of law with a supervisor, even if the information is outside the scope of the investigator’s mandate. Employers may also wish to develop a roster of external investigators to supplement internal resources so that complaints do not go unanswered due to workload constraints of internal staff, who may have a range of other responsibilities, or because that an employee raises concerns that fall outside the expertise. or the experience of internal staff.

In addition to designating appropriate resources to investigate complaints, employers may also wish to create or refine consistent processes for contacting reporting parties at the appropriate stages following acknowledgment of a complaint and notifying those individuals once the investigation completed. Failure to communicate to reporting parties to understand whether their concerns are being investigated – and when a particular review process has been completed – can increase the likelihood of subsequent legal action for retaliation or widespread perceptions that their codes of conduct are performative.

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