Legislative Memo: Whistleblower Protections

These bills would expand prohibitions against retaliatory measures against whistleblowers. The New York Civil Liberties Union supports these measures as it is sound public policy not to permit retaliation against persons who act courageously to protect the public good by disclosing the harmful conduct of their employers.

A.3089, which has passed the Assembly, would amend the labor law to shield employees of health care facilities who disclose to government agencies practices that harm the health of a patient or the public.

This bill would also amend the labor law and the public health law to forbid such facilities from restricting health care providers from reporting to the appropriate agency or department any policies or practices that have a negative impact on patient care, and from commenting publicly subsequent to making that report.

S.1453-A in its amended form amends the labor law to prohibit employers from taking retaliatory actions against any employee who discloses to a public body or supervisor policies or practices that the employee believes violate any law or regulation or constitute improper quality of patient care.

Employees are also protected from retaliation for refusing to participate in any such activities. S.1453-A in its amended form protects only employees. Unlike A.3089, S.1453-A does not forbid a health care facility from prohibiting or restricting health care providers who are independent contractors from reporting and commenting on policies and practices that have a negative impact on patient care. The NYCLU encourages legislators to restore that additional protection to this bill.

These measures are essential to protect not only health care providers, but also the public at large as patients. These protections are particularly important as the bills will help foster a more open discussion of public health and safety in an industry upon which the public ultimately depends to maintain their health.

The consequences of employer retaliation against a whistleblower can be dire. Jobs may be lost, careers ruined. This bill offers an expansion of protections that are crucial to the safety of the public and the integrity of business. The NYCLU urges the passage of A. 3089, or of S.1453-A with restoration of the additional protection provided in the earlier version of the bill.

Addendum

In our recent Legislative Memorandum #9, we indicated our support for A.3089 and S.1453-A expanding prohibitions against retaliatory measures against whistleblowers. We also encouraged the restoration to S.1453-A of the provision that prohibited health care facilities restricting health care providers who are independent contractors from reporting on policies and practices that have a negative impact on patient care. We note with disappointment that the new A.11435/S.8133, which appears to be a successor bill to those discussed above, does not restore that protection.

In addition, we note that this new bill provides somewhat less protection than its predecessors. For example, it fails to add “the appropriate governmental agency or department” to the list of entities to which a whistleblower (not limited to the health care industry) may report without fear of retaliation. It also provides a somewhat narrower definition of the conditions that a healthcare employee may disclose without fear of retaliation.

The NYCLU appreciates the efforts of the sponsors of these bills to provide additional protection against retaliation to whistleblowers in the healthcare industry. We would, however, encourage legislators make those protections broader rather than narrower for the protection of both the whistleblowers themselves and the public in general.