Speaking Out

The act of whistleblowing—disclosing workplace misconduct to the public—always takes courage. However, the fear of retaliation often adds an extra degree of complication for people who want to do the right thing.

“As a society, we want to encourage people to speak up when something is wrong, and one way to do that is by protecting them from retaliation when they do speak up,” says Jason Solotaroff, employment law attorney at Giskan Solotaroff & Anderson. 

New York’s whistleblower law—New York Labor Law Section 740—goes a long way to encourage reporting. The law was amended in early 2022 to broaden the definition of “employee,” to extend the allotted time to report retaliation, and to provide protection for whistleblowers who reasonably believe their employer acted illegally. 

Megan Goddard, an employment discrimination attorney at Goddard Law, is pleased with the law’s amendments. “As a New Yorker, I am relieved that our citizens who report illegal or dangerous situations are now protected from retaliation,” she says. “Laws that encourage reporting keep New Yorkers safer.”

Thanks to Section 740’s amendments, current employees, former employees and independent contractors now qualify for whistleblower protections. Goddard says it’s a misconception that whistleblowers only work for large corporations. In fact, “the New York law applies to any person who employs one or more employees,” she says. 

The law also previously only applied to conduct affecting public interest. Now, however, “if you complain about anything that is illegal, you are protected,” says Solotaroff. The public interest is no longer a threshold consideration. 

There’s more. Under the prior law, a whistleblower was protected from retaliation only if an actual legal violation was proven. “Now, the test is ‘reasonable belief’ of a violation,” Solotaroff says, so employees can feel comfortable reporting potentially suspect acts as well as blatantly obvious violations. “We don’t want to protect whistleblowers only when they are right.” 

Retaliation and Recovery

The law specifically defines retaliation as “an adverse action taken … to discharge, threaten, penalize or in any other way discriminate against any employee or former employee exercising his or her rights.”

Notably, the mere threat of retaliation will suffice. For instance, “threatening to contact immigration authorities regarding the immigration status of a whistleblower or that of an employee’s family or household member constitutes retaliation,” Solotaroff says.

Thanks to the recent amendments, New York whistleblowers can pursue an action for retaliation within two years from the date of the alleged retaliatory act. Examples of compensation include “reinstatement, injunctive relief, lost wages and benefits, attorney’s fees and costs, a civil penalty up to $10,000, and even punitive damages,” says Goddard. 

Though reinstatement is an option, “in most situations when someone has sued, going back to work just doesn’t work,” Solotaroff says. Instead, he adds, “they can get front pay, which is money going forward to compensate for the job they don’t have anymore.”

Collecting a fair recovery following retaliatory action requires the expertise of a knowledgeable employment attorney. “The earlier you contact a lawyer, the better. Sometimes we realize that the issue the client came to us with is not really a thing, but another thing is,” Solotaroff says. 

“Section 740’s attorney’s fees provision makes it possible for New Yorkers to retain a lawyer on a contingency basis, which means they do not have to pay out of pocket to bring a whistleblower claim,” adds Goddard. 

She hopes the law will encourage employers to look at whistleblower complaints in a new light. “Encouraging and appreciating feedback from your employees keeps companies, employees and customers safer,” she says.