Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7511 x210


S.5620 (Savino)/A.6971 (Wright)



Expansion of whistleblower protections



June 13, 2011


This bill would amend the state’s Labor and Civil Service laws and expand whistleblower protections beyond the already existing protections available in the Labor and Civil Service laws. The Business Council opposes enactment of this bill.

Decreased employee responsibility
This bill would afford protection for employees who report what they reasonably believe is an illegal private sector business activity. Currently, the law protects employees who report actual private sector employer violations of law. We believe that there needs to be a firm standard for the law’s protection. This bill would provide a fuzzy, unclear standard for the law’s protection for private sector employees and would subject employers to potential legal action every time an employee wants a court to judge whether their report about the employer was based on a reasonable belief that an illegal business activity has occurred.

Also, the current requirement that an employee bring the law violation to the attention of a supervisor to get the law’s protection is a standard. Moving it away from actually bringing it to the employer’s attention to making a good faith effort to bring it to the employer’s attention is removing a clear standard and replacing it with a fuzzy, unclear standard.

Following the public sector
A justification to move private sector employee’s protections to the reasonable belief non-standard from the current actual violation standard is that public sector employees have not had an actual violation standard since the civil service law was changed in 1986. Given the dramatic differences in the missions, operations and employee and labor relations in the two sectors, we think this is no reason at all.

No limits
It appears that there would not be any area not covered by this bill. The only limit to what could be alleged would rest in the imagination of the person making the allegation of what they believe is an illegal business activity, as long as it is in good faith. The bill introduces very vague language which would be open to broad interpretation which, rather than clarifying an issue, would instead introduce significant confusion.

Another required bulletin board posting
Not only does this bill require employers to post yet another mandatory bulletin board notice, adding to the almost dozen already required by state and federal governments, it cancels one of the few employer protections in the law, the employer notification requirement, if the bulletin board notice is not posted.

The message to New York businesses
As we work toward improvement of the state’s economy and the creation of jobs lost in the last several years, the Legislature needs to send loud and clear positive messages to businesses in and out of the state. Enactment of this bill sends no such message. In fact, it sends the all too familiar message that the New York State Legislature stands ready to find new and different ways to interfere with business and worsen the business climate.

For these reasons, The Business Council opposes this legislation and respectfully urges that it not be enacted by the New York State Legislature.