Section 1. Section 740 of the labor law, as added by chapter 660 of

the laws of 1984, paragraph (g) of subdivision 1 as added and  paragraph (a)  of subdivision 2 as amended by chapter 442 of the laws of 2006, and

paragraph (d) of subdivision 4 as added by chapter 24  of  the  laws  of    5  2002, is amended to read as follows:

S  740.  Retaliatory [personnel] action by employers; prohibition. 1.

Definitions. For purposes of this section, unless the  context  specifically indicates otherwise:

(a) "Employee" means an individual who performs services for and under

the control  and  direction of an employer for wages or other remuneration.

(b) "Employer" means any  person,  firm,  partnership,  institution, corporation, or association that employs one or more employees.

(c)  "Law, rule or regulation" includes: (I) any duly enacted FEDERAL,

STATE OR LOCAL statute or ordinance [or]; (II) any rule or regulation

promulgated pursuant to [any federal, state or local] SUCH statute or

ordinance; OR (III) ANY JUDICIAL OR ADMINISTRATIVE DECISION,  RULING  OR

ORDER.

(d) "Public body" includes the following:

        EXPLANATION--Matter in CAPITALS (underscored) is new; matter in brackets [ ] is old law to be omitted.

(i)  the United States Congress, any state legislature, or any [popularly-elected] ELECTED local governmental body, or any member or employee thereof;

(ii)  any federal, state, or local [judiciary] COURT, or any member or employee thereof, or any grand or petit jury;

(iii) any federal, state,  or  local  regulatory,  administrative,  or

public agency or authority, or instrumentality thereof; [or]

(iv) any federal, state, or local law enforcement agency, prosecutorial office, or police or peace officer;

(V)  ANY  FEDERAL, STATE OR LOCAL DEPARTMENT OF AN EXECUTIVE BRANCH OF

GOVERNMENT; OR

(VI) ANY DIVISION, BOARD, BUREAU, OFFICE, COMMITTEE, OR COMMISSION OF

ANY  OF  THE PUBLIC BODIES DESCRIBED IN SUBPARAGRAPHS (I) THROUGH (V) OF THIS PARAGRAPH.

(e) "Retaliatory [personnel] action" means the discharge,  suspension

(e) “Retaliatory [personnel] action” means the discharge, suspension[or  demotion  of], DEMOTION, PENALIZATION OR DISCRIMINATION AGAINST an employee OR FORMER EMPLOYEE, or other adverse [employment] action  taken against  an  employee OR FORMER EMPLOYEE [in the terms and conditions of employment].

(f) "Supervisor" means any individual within an  employer's  organization who has the authority to direct and control the work performance of [the  affected]  AN  employee; or who has [managerial] authority to take corrective action regarding the [violation of the  law,  rule  or  regulation] ILLEGAL BUSINESS ACTIVITY of which the employee complains.

(g) ["Health care fraud" means health care fraud as defined by article

One hundred seventy-seven of the penal law.] "AGENT" MEANS ANY INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION OR GROUP OF PERSONS ACTING ON BEHALF OF AN EMPLOYER.

(H) "ILLEGAL BUSINESS ACTIVITY" MEANS ANY PRACTICE, PROCEDURE, ACTION OR  FAILURE  TO  ACT  BY  AN  EMPLOYER,  OR AN EMPLOYEE OR AGENT OF SUCH

EMPLOYER, TAKEN IN THE COURSE OF THE EMPLOYER'S BUSINESS, WHETHER OR NOT WITHIN THE SCOPE OF EMPLOYMENT OR AGENCY, THAT IS IN  VIOLATION  OF  ANY LAW,  RULE OR REGULATION PUNISHABLE BY IMPRISONMENT OR CIVIL OR CRIMINAL PENALTY.

Section 2. Prohibitions. An employer shall not take any retaliatory  [personnel] action against an employee OR FORMER EMPLOYEE because such employee OR  FORMER  EMPLOYEE  does  any  of  the following WHILE EMPLOYED BY THE EMPLOYER, WHETHER OR NOT WITHIN THE SCOPE OF THE EMPLOYEE'S JOB DUTIES:

(a) discloses TO A SUPERVISOR  OR  A  PUBLIC  BODY,  or  threatens  to

[disclose]  MAKE A  DISCLOSURE  to  a  [supervisor or to a] public body

UNLESS THE EMPLOYER REMEDIES THE ILLEGAL BUSINESS ACTIVITY, INFORMATION

ABOUT  an ILLEGAL BUSINESS activity[, policy or practice of the employer that is in violation of law, rule or regulation which violation  creates and  presents  a substantial and specific danger to the public health or safety, or which constitutes health care fraud];

(b) provides information to, or  testifies  before,  any  public body conducting an investigation, hearing or inquiry into any such [violation of  a  law,  rule  or  regulation  by  such  employer] ILLEGAL BUSINESS ACTIVITY; or

(c) objects to, or refuses to participate in, any [such] ILLEGAL BUSINESS activity[, policy or practice in violation of a law, rule or regulation].

Section 3.  Application. The protection against retaliatory [personnel] action provided by PARAGRAPHS (A), (B) AND  (C)  OF  SUBDIVISION  TWO  OF  THIS SECTION  SHALL  APPLY  TO  ANY  EMPLOYEE  WHO  IN  GOOD FAITH REASONABLY BELIEVES THAT AN ILLEGAL BUSINESS ACTIVITY HAS OCCURRED OR  WILL  OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO  BE TRUE; PROVIDED HOWEVER THAT THE PROTECTION AGAINST RETALIATORY ACTION PROVIDED BY paragraph (a) of  subdivision  two  of  this  section pertaining to disclosure to a public body shall not apply to an employee who  makes  such  disclosure  to  a  public body unless the employee has [brought] MADE A GOOD FAITH EFFORT TO NOTIFY  HIS  OR  HER  EMPLOYER  BY BRINGING the ILLEGAL BUSINESS activity[, policy or practice in violation of  law,  rule  or  regulation] to the attention of a supervisor [of the employer] and has afforded such employer  a  reasonable  opportunity  to correct  such activity[, policy or practice]. SUCH EMPLOYER NOTIFICATION SHALL NOT BE REQUIRED WHERE: (A) THE EMPLOYER HAS NOT POSTED ANY  NOTICE REQUIRED  BY SUBDIVISION EIGHT OF THIS SECTION; (B) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH  OR  SAFETY; (C) THE  EMPLOYEE REASONABLY  BELIEVES  THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT  OF  THE  ILLEGAL  BUSINESS ACTIVITY;  (D)  SUCH  ACTIVITY  COULD  REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR; (E) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE SUPERVISOR WOULD RESULT IN PHYSICAL  HARM  TO  THE OR  ANY  OTHER PERSON; OR (F) THE EMPLOYEE REASONABLY BELIEVES THE SUPERVISOR IS ALREADY AWARE OF THE  ILLEGAL  BUSINESS  ACTIVITY WILL NOT CORRECT SUCH ACTIVITY.

Section 4.  Violation;  remedy.  (a) An employee who has been the subject of a retaliatory [personnel] action in violation of this section  may  institute  a  civil action in a court of competent jurisdiction for relief asset forth in subdivision five of this  section  within  [one  year]  TWO YEARS after the alleged retaliatory [personnel] action was taken. (b) Any action authorized by this section may be brought in the county in  which  the  alleged  retaliatory [personnel] action occurred, in the county in which the complainant resides, or in the county in  which  the employer  has  its principal place of business.  IN ANY SUCH ACTION, THE PARTIES SHALL BE ENTITLED TO A JURY TRIAL. (c) [It shall be a defense to any  action  brought  pursuant  to  this section that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section.] EXCEPT AS OTHERWISE  PROVIDED  IN THIS SECTION, A VIOLATION OF THIS SECTION IS ESTABLISHED WHEN THE COMPLAINANT DEMONSTRATES THAT A  MOTIVATING  FACTOR FOR  THE  RETALIATORY  ACTION  VIOLATES SUBDIVISION TWO OF THIS SECTION. REMEDIES FOR VIOLATION OF SUBDIVISION  TWO  OF  THIS  SECTION  SHALL  BE LIMITED  SOLELY  TO  THOSE  PROVIDED  IN  PARAGRAPHS (E), (F) AND (G) OF SUBDIVISION FIVE OF THIS SECTION IF THE EMPLOYER  DEMONSTRATES  THAT  IT WOULD  HAVE  TAKEN  THE  SAME ACTION IN THE ABSENCE OF THE IMPERMISSIBLE MOTIVATING FACTOR. It shall [also] be a defense that the individual was an independent contractor. [(d)  Notwithstanding the provisions of paragraphs (a) and (c) of this subdivision, a health care employee who has been the subject of a retaliatory action by a health care employer in violation  of  section  seven hundred  forty-one  of  this  article  may institute a civil action in a court of competent jurisdiction for relief as set forth  in  subdivision five  of  this  section  within  two years after the alleged retaliatory personnel action was taken. In addition to the relief set forth in that subdivision, the court, in its discretion, based upon a finding that the employer  acted  in  bad faith in the retaliatory action, may assess the

employer a civil penalty  of  an  amount  not  to  exceed  ten  thousands dollars,  to  be  paid  to  the  improving quality of patient care fund,

established pursuant to section ninety-seven-aaaa of the  state  finance law.]

Section 5. Relief. In any action brought pursuant to subdivision four of this section, the court may order relief as follows:

(a) [an injunction to restrain continued violation of this section;(b)]  the  reinstatement  of  the  employee  to the same position held before the retaliatory [personnel] action[,] or to an  equivalent  position, OR FRONT PAY IN LIEU THEREOF; [(c)]  (B)  the  reinstatement  of  full fringe benefits and seniority rights; [(d)] (C) the compensation for lost wages, benefits and other remuneration; [and (e)] (D) COMPENSATORY DAMAGES FOR  ECONOMIC  LOSS  AND  FOR  EMOTIONAL DISTRESS; (E)  the  payment  by the employer of reasonable costs, disbursements, and attorney's fees; (F) AN INJUNCTION TO RESTRAIN THE EMPLOYER'S  CONTINUED  VIOLATION  OF THIS SECTION; AND (G)  A  CIVIL  PENALTY OF AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS AND/OR A LIQUIDATED DAMAGES AWARD EQUAL TO AMOUNTS OF  DAMAGES  PURSUANT PARAGRAPHS  (C)  AND  (D)  OF THIS SUBDIVISION, IF THE COURT, IN ITS, FINDS THAT THE EMPLOYER ACTED IN BAD FAITH IN THE RETALIATORY ACTION.

Section 6. Employer relief. A court, in its discretion, may also order that reasonable attorneys' fees and court costs and disbursements be awarded to an employer if the court determines that  an  action  brought  by  an employee under this section was without basis in law or in fact.

Section 7.  Existing rights. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any  other law or regulation  or  under  any  collective  bargaining agreement or employment contract[; except  that  the  institution  of  an  action  in accordance  with this section shall be deemed a waiver of the rights and remedies available  under  any  other  contract,  collective  bargaining agreement, law, rule or regulation or under the common law].

Section 8.  PUBLICATION.  EVERY  EMPLOYER  SHALL  INFORM  EMPLOYEES  OF  THEIR PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS  SECTION,  BY  POSTING  A NOTICE  THEREOF.    SUCH NOTICES SHALL BE POSTED CONSPICUOUSLY IN EASILY ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES AND APPLICANTS FOR EMPLOYMENT.

S 2. Subdivision 4 of section 741 of the labor law, as added by chapter 24 of the laws of 2002, is amended to read as follows:

4. Enforcement. A health care employee may seek enforcement of  this section pursuant to [paragraph (d) of subdivision] SUBDIVISIONS four AND FIVE of section seven hundred forty of this article.

S 3. Subdivision 2 of section 75-b of the civil service law, as added by chapter 660 of the laws of 1984 and paragraph (a) as amended by chapter 899 of the laws of 1986, is amended to read as follows:

2. (a) A public employer shall not dismiss, SUSPEND, DEMOTE, PENALIZE, THREATEN OR DISCRIMINATE AGAINST, or take other  disciplinary  or  other [adverse  personnel  action]  ACT  OF REPRISAL against a public employee regarding the employee's employment because the employee: (I) discloses TO  A  PUBLIC BODY OR THREATENS TO MAKE A DISCLOSURE TO A PUBLIC BODY OR SUPERVISOR IF THE EMPLOYER DOES NOT REMEDY THE IMPROPER  CONDUCT, to a governmental  body  information[:  (i)]  regarding a violation of a law, rule or regulation which violation creates [and] OR presents a  substantial  and specific danger to the public health or safety[; or (ii) which the employee reasonably believes to be true and reasonably believes], OR WHICH constitutes an improper governmental  action[.  "Improper  governmental  action"  shall mean any action by a public employer or employee or an agent of such employer or employee, which  is  undertaken  in  the performance  of such agent's official duties, whether or not such action is  within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation], OR WHICH COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE  OF  A  MINOR; (II) PROVIDES INFORMATION TO, OR TESTIFIES BEFORE, ANY PUBLIC BODY CONDUCTING AN  INVESTIGATION,  HEARING  OR  INQUIRY  INTO ANY VIOLATION OR IMPROPER GOVERNMENTAL ACTION; OR (III) OBJECTS TO, OR REFUSES TO PARTICIPATE  IN, ANY SUCH VIOLATION OR IMPROPER GOVERNMENTAL ACTION. (b) THE  PROTECTION  AGAINST  RETALIATORY ACTION PROVIDED IN SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL APPLY  TO ANY  EMPLOYEE  WHO IN GOOD FAITH REASONABLY BELIEVES THAT A VIOLATION OR IMPROPER GOVERNMENTAL ACTION HAS OCCURRED OR WILL OCCUR, BASED ON INFORMATION THAT THE EMPLOYEE IN GOOD FAITH REASONABLY BELIEVES TO BE TRUE. (C) Prior to disclosing information pursuant to SUBPARAGRAPH (I) OF paragraph (a) of  this subdivision, an employee shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority  or  designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety. For the purposes of this subdivision, an employee who acts pursuant to this paragraph  shall  be  deemed  to have disclosed information to a governmental body under paragraph (a) of this subdivision. NOTIFICATION TO THE  APPOINTING  AUTHORITY  OR DESIGNEE SHALL NOT BE REQUIRED WHERE: (I) THE EMPLOYER HAS NOT POSTED ANY NOTICE REQUIRED BY SUBDIVISION  FIVE OF THIS SECTION; (II) THERE IS AN IMMINENT AND SERIOUS DANGER TO THE PUBLIC HEALTH  OR SAFETY; (III) THE EMPLOYEE REASONABLY BELIEVES THAT REPORTING TO THE APPOINTING AUTHORITY OR DESIGNEE WOULD RESULT IN A DESTRUCTION OF EVIDENCE OR OTHER CONCEALMENT OF THE IMPROPER  GOVERNMENTAL  ACTION;  OR (IV)  SUCH  ACTIVITY COULD REASONABLY BE EXPECTED TO LEAD TO ENDANGERING THE WELFARE OF A MINOR. (D) "IMPROPER GOVERNMENTAL ACTION" SHALL MEAN ANY PRACTICE, PROCEDURE, ACTION OR FAILURE TO ACT BY A PUBLIC EMPLOYER OR EMPLOYEE, OR  AN  AGENT OF  SUCH EMPLOYER OR EMPLOYEE, WHICH IS UNDERTAKEN IN THE PERFORMANCE OF SUCH AGENT'S OFFICIAL DUTIES, WHETHER OR NOT SUCH ACTION IS  WITHIN  THE SCOPE OF SUCH PERSON'S EMPLOYMENT, AND WHICH IS IN VIOLATION OF ANY LAW, RULE OR REGULATION REGARDING GOVERNMENTAL ACTION PUNISHABLE BY IMPRISONMENT  OR  CIVIL OR CRIMINAL PENALTY. "LAW, RULE OR REGULATION" INCLUDES: (I) ANY DULY ENACTED FEDERAL, STATE OR LOCAL STATUTE OR ORDINANCE; (II) ANY RULE OR REGULATION PROMULGATED PURSUANT TO ANY SUCH STATUTE OR ORDINANCE;  OR  (III)  ANY  JUDICIAL  OR  ADMINISTRATIVE DECISION, RULING OR ORDER.

S4. Subdivision 3 of section 75-b of the civil service law, as added by chapter 660 of the laws of 1984, is amended to read as follows:

3. (a) Where an employee is subject to dismissal or other disciplinary

action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law, OR TO THE ELIMINATION OF JOB TITLE OR CLASSIFICATION THAT UNIQUELY FITS AND SINGLES OUT SUCH EMPLOYEE and the employee reasonably believes THAT SUCH  dismissal [or], other disciplinary action OR OTHER ADVERSE ACTION would not have been taken but for the  conduct  protected under  subdivision  two  of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of  such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding  that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision,  the  arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding,  as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration  procedure,  may  take other  appropriate action as is permitted in the collectively negotiated agreement.(b) Where an employee is subject to a collectively  negotiated  agreement  which  contains  provisions  preventing  an  employer  from taking adverse [personnel] actions and which contains a final and binding arbitration provision to resolve alleged violations of  such  provisions  of the agreement and the employee reasonably believes that such [personnel] action  would  not  have  been taken but for the conduct protected under subdivision two of this section, he or she may assert such  as  a  claim before  the  arbitrator.  The  arbitrator  shall consider such claim and determine its merits and shall, if a determination  is  made  that  such adverse  [personnel] ion is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement. (c) [Where] IN ADDITION TO OR IN LIEU OF THE PROCEDURES SET  FORTH  IN PARAGRAPHS  (A) AND (B) OF THIS SUBDIVISION, OR WHERE an employee is not subject to any of the provisions of [paragraph (a) or (b) of this subdivision] SUCH PARAGRAPHS, the employee may commence an action in a  court of  competent  jurisdiction  under the same terms and conditions AND FOR THE SAME RELIEF as set forth in article twenty-C of the labor law.

S 5. Section 75-b of the civil service law is amended by adding a new subdivision 5 to read as follows: 5.  EVERY PUBLIC EMPLOYER SHALL INFORM EMPLOYEES OF THEIR PROTECTIONS, RIGHTS AND OBLIGATIONS UNDER THIS SECTION, BY POSTING A NOTICE  THEREOF. SUCH  NOTICES  SHALL  BE  POSTED  CONSPICUOUSLY IN EASILY ACCESSIBLE AND WELL-LIGHTED PLACES CUSTOMARILY FREQUENTED BY EMPLOYEES  AND  APPLICANTS FOR EMPLOYMENT.

S 6.  This act shall take effect on the ninetieth day after it shall have become a law.