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Melissa Harris-Perry: Hi, everybody. I'm Melissa Harris-Perry, and this is The Takeaway. Today is Wednesday, January 26, and a new law is set to take effect in New York State. New York's Labor Law Section 740 expands today. The new rule provides further protections against employer retaliation against whistleblowing employees. Now, the new law provides more protection for more people, and to be clear, these protections became necessary during the pandemic because employees had to start reporting that their workplaces were failing to provide adequate PPE and failing to follow state rules for safe working conditions.

I spoke with Rachel Green, an associate at Katz, Marshall & Banks, LLP, a firm that specializes in whistleblower and employment law. We discussed the new rights that whistleblowers in New York can enjoy. Thanks to the expansion of Labor Law Section 740.

Rachel Green: Whistleblower is an employee who complains about something that they reasonably believe is a violation of the law that their employer or someone else working for their employer has committed. Once they report that, if the employer retaliates against them, that employee might have a claim against the employer.

Melissa Harris-Perry: I think we see often very high-profile examples of this when we're talking about like the Edward Snowden's of the world, but I presume most whistleblowing isn't happening at that level.

Rachel Green: Absolutely. Many whistleblowers might be reporting about something like a tax violation, or especially in today's COVID-19 pandemic, lack of proper safety equipment for employees. They're usually things that are happening on the day-to-day basic level that many employees might witness and might consider that might not be legal but may not feel comfortable coming forward about.

Melissa Harris-Perry: I know that you wrote a recent piece in the National Law Review highlighting New York legislation that was passed both in 2020 and 2021. What prompted this?

Rachel Green: Many things prompted it, and obviously, I'm not a legislator, so I cannot speak exactly to what prompted it, but the bill sponsors did write with respect to the 2020 legislation that they were concerned about the COVID-19 pandemic, and they wanted to provide medical professionals, in particular, create whistleblower protections to try to speak more freely about the conditions of themselves in the workplace as well as their patients.

Melissa Harris-Perry: With these things like not getting sufficient PPE or being asked to work closer than six feet, what were some of those COVID-related experiences?

Rachel Green: Mostly the PPE. That's something that the legislature particularly highlighted as a concern, and also, of note, employees during the early days of the COVID-19 pandemic, when things were really scary and we knew nothing about even how to prevent the spread of COVID, many healthcare workers were reporting concerns over social media.

Before these 2020 and 2021 amendments, those types of reports that were in social media would not have been protected under New York law as protected activity under the whistleblower law, and so legislators were concerned because they thought, we don't even know what's going on with the COVID-19 pandemic, and our healthcare workers are quite literally paving the way, and if they're not protected from reporting something that may be of concern, the legislature took it upon themselves to make some changes to make sure that our healthcare workers are protected.

Melissa Harris-Perry: Help me a bit, when you say protected, what kinds of retaliation were people experiencing?

Rachel Green: At the time, some employees would have been fired. They may have been demoted. They may have been asked to move to less favorable shifts. There are many different acts that employers can take to "retaliate" against the employees. Most people think of hiring and firing as the main activities of an employer, but there are a lot of different ways that employers can take a negative action that would be quite harmful to an employee's activities on the job.

Melissa Harris-Perry: Help us think about how this new legislation over the past couple of years out of New York, places New York relative to, for example, federal whistleblower laws.

Rachel Green: Before this new legislation, New York State law was quite behind, it lagged behind federal laws and the protections that employees had under federal laws. One good example of that is before this new legislation, an employee had to demonstrate that there was an actual violation of the law in order to be protected, but most employees are likely to be unfamiliar with the ins and outs of what actions might constitute an actual violation of the law.

This undoubtedly spooked many employees from complaining at all and doomed many retaliation claims, but now this new law imposes what's called a reasonable belief standard. If the employee reasonably believes that the employer's action is in violation of law, they might be protected, and that's a huge deal. That reflects both the federal standard and the standards in several other states.

I looked into New Jersey, Maine, California, many states follow this reasonable belief standard, and it's an important expansion of protection. It's also significant because this New York whistleblower law now protects both private and public employees the same. New York Civil Service Law 75-b protects public employees under the same reasonable belief standard. Private employees were under a different standard. Now New York is bringing its entire public and private employee base under the same standard.

Melissa Harris-Perry: This is largely speculative, but still just want your opinion on this. Do you think that other states will follow the lead of New York on this?

Rachel Green: That's an interesting question. In some aspects of the law, New York is catching up to other states. Most notably, New Jersey, who famously has a very expansive whistleblower protection law called the Conscientious Employee Protection Act. It has very broad language. In some respect, New York is catching up to other states and to the federal protections, but it's possible. New York, California, DC, they've often been leaders in these types of protections for employees across the United States, and if other legislatures are trying to think about language to use to expand protections for employees and for whistleblowers, yes, they might look to New York's new legislation because it has very good protections for employees.

Melissa Harris-Perry: What about folks who have never thought about-- Again, I think sometimes when we hear the word whistleblower, we're thinking a very high-level policy, top-secret kinds of spy games, but it's so helpful to understand. No, we're talking about frontline workers who don't have sufficient PPE who go on their Facebook page and say, "Hey, my employer is not providing sufficient PPE." What might you say to a Takeaway listener who is thinking, what does whistleblowing have to do with me?

Rachel Green: Well, I think a lot of these changes, hopefully, make this all a little bit more accessible and more understandable to the average employee who might not be working in those high-level policy parts of their job. For example, one aspect of the law requires that employers must notify folks who work for them as well as applicants of their protections, and that's now part of the law.

If an employer does not post that, any employee, if you don't see that notice, that employee might be eligible to "blow the whistle", to say, "Hey, employer, you're required to post this notification and you don't." That's something that anybody could notice in the employee workroom, or the lunchroom, breakroom, what have you. There should be some notice, and if there isn't, that's a violation that might render that employee eligible to blow the whistle, and that's something that everybody can get involved in.

Melissa Harris-Perry: Rachel Green, thank you for joining The Takeaway.

Rachel Green: Thank you.

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