Unfortunately for New York workers, New York has a notoriously weak workplace “whistleblower law”. Its general whistleblower statute, NY Labor Law § 740, provides (in pertinent part):
An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following:
(a) discloses, or threatens to disclose to a supervisor or to a public body an 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; or
(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
(Emphasis added.)
(A more specific whistleblower provision, NY Labor Law § 741, protects employees of “health care employers”.)
Per the bolded language, not every complaint about a legal violation gives rise to a cause of action under § 740. The Appellate Division’s decision in Diaz v. New York State Catholic Health Plan, Inc. 2015 NY Slip Op 08129 (App. Div. Nov. 12, 2015) illustrates this point. There, the court unanimously affirmed the dismissal of plaintiff’s § 740 claim, explaining:
The allegations that plaintiff … reported an assault and battery by a supervisor fail to state a claim under Labor Law § 740, the “Whistleblower” Law. Assault and battery by a supervisor is not “an 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” (Labor Law § 740[2][a]).
The court also affirmed the dismissal of plaintiff’s NYC Human Rights Law retaliation claims, finding that those claims “fail to allege facts establishing the requisite causal nexus between the protected activity and the adverse action” and “fail to allege facts establishing when the alleged retaliatory incidents occurred or how those incidents were causally connected to any protected activity.”