Court Rejects Argument That Assertion of State Law Whistleblower Claim Waives Discriminatory Termination Claims

Citing a recent amendment to New York’s “whistleblower law”, Labor Law 740, the court in Zhou v. Roswell Park Cancer Institute Corp. et al, 2020 WL 3574631 (W.D.N.Y. July 1, 2020), rejected defendants’ argument that plaintiff’s discriminatory termination claims were “waived” by assertion of a claim under that statute.

From the decision:

The Court recommends denying this portion of defendants’ motion as both unavailing and incomplete. Neither side has accounted for an amendment to Section 740 that occurred late last year. Prior to December 20, 2019, Labor Law § 740(7) did in fact contain language, cited by defendants, 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.” On December 20, 2019, however, the Governor signed into law an amendment to Section 740(7). 2019 N.Y. Laws 684, 2019 Sess. Law News of N.Y. Ch. 684 (A. 375) (McKinney). In the amendment, which took effect immediately, the Legislature deleted all of the language cited here by defendants and replaced it with the following language: “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.” N.Y. Lab. Law § 740(7). The parties have not addressed whether the amendment to Section 740(7) would apply retroactively to September 6, 2019, the date when plaintiff filed her complaint. Even without retroactivity, the Court would be skeptical of an assertion that an invocation of state law would somehow prohibit a plaintiff from accessing remedies under federal law. See Collette v. St. Luke’s Roosevelt Hosp., 132 F. Supp. 2d 256, 266 (S.D.N.Y. 2001) (“None of the cases adopting the ‘course of conduct’ test stand for the proposition that a federal claim can be barred by resort to asserting a whistleblower claim under state law.”).

The court thus concluded that the “most prudent course of action will be to recommend denying this portion of defendants’ motion without prejudice to renew with a more careful consideration both of federalism principles and of the amendment to Section 740(7) that occurred late last year.”

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