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Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.465.7517 x210
www.bcnys.org

BILL:

S.3862-A (Klein) / A.5696-A (Benedetto)

Support

SUBJECT:

Expansion of whistleblower protections

 

DATE:

May 1, 2014

 

This bill would amend the state Labor Law and expand whistleblower protections beyond the already existing protections available in Sections 740 and 741 of the Labor Law. The Business Council opposes enactment of this bill.

The definition of "illegal business activity" is exceedingly broad.
On its face, this phrase appears to cover every arguable impropriety that an employee can conjure with respect to any aspect of the employer's business, no matter how marginal or isolated. It appears clear from the sponsor's memorandum and other written support for the legislation that the primary goal of this particular amendment to the bill is to protect the public from activities that could reasonably be perceived as deceptive or fraudulent business practices. But the expansive language proposed in the bill goes far beyond that. Certainly such an objective could be achieved with more focused drafting and without subjecting employers to seemingly limitless exposure.   

Decreased employee responsibility.
This bill would afford protection for employees who report what they reasonably believe is an improper private sector business activity. Currently, the law protects employees who report actual private sector employer illegal business activities. We believe that there needs to be a firm standard for the law's protection. This bill would require no standard for the law's protection for private sector employees and would subject employers to unecessary legal action.

Following the public sector.
A justification to move private sector employee's protections to the reasonable belief  standard from the current actual violation standard is that public sector employees haven't had an actual violation standard since the civil service law was changed in 1986. Given the 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 improper activity, as long as it's 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 business climate, 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.