The term “whistleblower” gets thrown around a lot these days, but one of the more common misperceptions by employees is the erroneous assumption that all retaliation by an employer is illegal. That is simply not the case, even if the retaliation is completely unfair. To put it simply, the law isn’t fair. Instead, federal, state and city law only make certain types of retaliation illegal. So if your boss is retaliating against you because you skipped his birthday party or is just a mean person, you have our utmost sympathy, but there is nothing illegal about that. The purpose of this post is to try to clear up some of he misconceptions that exist and highlight many of the most common types of illegal retaliation.
Anti-Discrimination and Anti-Retaliation
As you know from prior posts, federal, state and city law prohibit discrimination against a number of different classes of individuals. These laws also go one step further and make it illegal for an employer to retaliate against an employee that either complains of unlawful discrimination (and it must be unlawful discrimination – see our previous post for a discussion about what types of employment discrimination are illegal in New York City) or assists in someone else’s complaint. The first type of protected activity is sometimes referred to as “opposition clause” activity and is pretty straightforward: your employer can’t retaliate against you because you complained of unlawful discrimination. The second type of protected activity is what is known as “participation clause” activity and extends to anyone who testifies, assists or participates in any manner in someone else’s complaint or an employer’s investigation. So even if you did not complain, but were a witness (or even the person that first received the complaint), you are protected by federal, state and local law and cannot be subjected to retaliation by your employer for this reason.
It is also important to keep in mind that an employer cannot retaliate against individuals who have a close association with someone that either complains or participates in a complaint. That means that if you and your spouse work for the same employer and your spouse complains of discrimination, your employer cannot take it out on you and get away with it. While the U.S. Supreme Court protects those who have a “close family relationship” to a person that has engaged in protected activity, it is less clear whether such protection will extend to friends or other types of acquaintances (but it is safe to assume that the answer is probably not).
Complaints About Wage Violations or Pay Practices
Both the Fair Labor Standards Act and the New York Labor Law prohibit discrimination against employees that have complained (or assisted others in filing a complaint) about a violation of the overtime or minimum wages laws. Additionally, because the NYLL is much broader than the FLSA – for example the NYLL requires that employees be paid at least twice a month and limits the types of deductions that an employer can take from an employee’s pay – the NYLL provides additional protection to employees that complain about their employer’s pay practices.
New York’s Whistleblower Statute – NYLL §§ 740 & 741
Unlike other states (New Jersey for example), New York does not have a strong whistleblower statute that protects employees that report illegal activity to their employer (unless of course the illegal activity falls under the above- and below-referenced areas). Instead, New York’s primary whistleblower statute (NYLL § 740) only applies to employees that reports or objects to is illegal AND “creates a substantial and specific danger to the public health or safety.” In interpreting this statutes, courts have dismissed claims regarding reports that posed a substantial risk to specific individuals and held that this statute was intended to protect the public at large from major disasters and, as a result, have applied it narrowly. Similarly, in order to pursue a claim under this statute, an employee must do more than simply show that they had a reasonable belief that they were reporting illegal conduct (as many other anti-retaliation statutes provide), but must present proof of an actual violation of the law which can be difficult to do and may actually prevent concerned employee from reporting complaints to their bosses.
NYLL § 741 is slightly broader than § 741, but it applies solely to health care employers and protects any employee that reports conduct that he or she reasonably believes constitutes “improper quality of patient care.” While this provides some additional protection to employees in the health care field, overall it is clear that this does not cover the vast number of employees in New York that report potentially unlawful conduct to their employer.
Sarbanes-Oxley and Dodd-Frank
Both Sarbanes-Oxley (more formerly known as the Public Company Accounting Reform and Investor Protection Act) and Dodd-Frank (Wall Street Reform and Consumer Protection Act) were passed, in part, to make it easier for employees of public companies to report potential fraud or violations of federal securities regulations both internally and to the SEC to avoid scandals like Enron or Lehman Brothers. SOX applies only to public companies (meaning those traded on public exchanges like the New York Stock Exchange or NASDAQ and their subsidiaries) and protects employees that report (either internally or externally) what they reasonably believe to be a violation of federal securities law or any SEC regulation. As the Congress creates additional securities laws and the SEC continues to regulate public company, the areas that fall under SOX and Dodd-Frank will only increase.
Family Medical Leave Act
In addition to protecting an employee’s right to take up to 12 weeks of leave to treat their own or a family member’s medical condition, the FMLA also prohibits an employer from retaliating against an employee that has taken or plans to take FMLA leave. This type of retaliation can take many forms, for example, refusing to reinstate an employee from FMLA leave, terminating their employment while out on or shortly after a return from FMLA leave, or terminating their employment before a planned FMLA leave starts. If you have notified your employer that you plan to take FMLA leave or have recently taken leave, you should pay close attention to any changes at work because this type of retaliation is often very subtle.
Political, Recreational or Union Activities
New York Labor Law § 201-d prohibits an employer from discriminating against employees who engage in a number of activities during non-work hours. These protected activities include political activities, the use of consumable products (e.g., alcohol or cigarettes), legal recreational activities, union membership and union activities. These provisions are pretty broad and there is not a great deal of court decisions interpreting these provisions, so there is a lot of gray area here, but one thing that courts have made clear is that romantic relationships do not fall under the definition of protected “recreational activity.”
Because the above is meant to only illustrate the most common types of employment retaliation, if you have any concerns about whether you have been subjected to retaliation at work, you should speak with an attorney. If you have additional questions or would like to be connected with an attorney that might be able to assist you, contact us below.