In Pisano v. Reynolds, No. 653347/2022, 2023 WL 3601527, 2023 N.Y. Slip Op. 31741(U) (N.Y. Sup Ct, New York County May 23, 2023), the court, inter alia, held that New York Labor Law § 740 – New York’s “whistleblower” statute – did not apply retroactively.
Notably, the New York legislature recently broadened this statute to apply to complaints about a broader category of alleged unlawful conduct. Here, it was undisputed that the newer (broader) version of the statute became effective after plaintiff brought this case; plaintiff concedes that he would not have a viable claim under the prior version of the statute.
The court focused its analysis on the question of whether the statute should have retroactive effect for plaintiff’s claims.
The relevant change here is that the violation–here, alleged financial impropriety–need not pose a specific danger to the public health or safety in order for plaintiff to bring a claim based on this statute. In other words, the statute now encompasses a broader set of alleged wrongs because a plaintiff, such as the plaintiff here, can bring a claim under section 740 without having to plead that there is a danger to public health or safety. The Court finds that this change is not remedial and instead provided plaintiff a new right or basis upon which to sue defendants. Specifically, as it applies to plaintiff’s claim, the statute did not correct a defect. Instead, the legislature decided to broaden the scope of the claims covered under the statute. That is, before this amendment went into effect, as long as the alleged wrongdoing was only financial, the **5 employee would get no benefit by whistleblowing; it was only when the alleged misconduct posed a specific danger that the employer had to worry about the employee bringing a case.
It concluded that the point of the amendment was to substantially expand the range of actionable violations, that “this expansion was not remedial as it was not a clarification or an effort to clean up a confusing statute,” and that “[i]ncreasing a party’s liability for past conduct makes this statute’s application here impermissibly retroactive.”
Thus, plaintiff could not pursue his whistleblower claim, since “the events that form the basis of his claims occurred long before this statute went into effect.”