On May 14, 2014, the New York Court of Appeals issued a unanimous decision relating to New York Labor Law §740(2), otherwise known as New York's "whistleblower statute." This provision of the Labor Law prevents any employer from retaliating against an employee who discloses or threatens to disclose "to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" that (i) "creates and presents a substantial and specific danger to the public health or safety;" or (ii) "constitutes health care fraud." In this case, Webb-Weber v Community Action for Human Servs., Inc., the Court focused on whether a complaint filed under the New York whistleblower statute "must identify the specific 'law, rule or regulation' allegedly violated by the employer."
Plaintiff-appellant had served as the chief operating officer of
the defendant-respondent. In her complaint, plaintiff claimed that
she had informed her supervisor and others about issues that she
believed were endangering the welfare and safety of defendant's
mentally and physically disabled patients. The alleged issues
included falsification of patient medication and treatment records,
inadequate fire safety, mistreatment of residents, and deficiencies
in patient care and facilities. After her initial reports were
ignored, plaintiff raised these issues with the applicable New York
State and City agencies, which thereafter levied violations and
sanctions against the defendant.
Plaintiff's employment eventually was terminated, and she filed
suit claiming a violation of New York's whistleblower law.
Defendant moved to dismiss, alleging that the complaint failed to
state a cause of action because it did not identify a specific law,
rule, or regulation that was allegedly violated. After the
Appellate Division, First Department, dismissed plaintiff's
state whistleblower claim, the Court of Appeals granted leave to
appeal.
The Court began by finding that the plain language of the New York
whistleblower statute does not require plaintiff to identify, at
the pleading stage, the specific law, rule, or regulation that he
or she believes her employer violated. Instead, "plaintiff
must show that she reported or threatened to report the
employer's 'activity, policy or practice,' but need not
claim that she cited any particular 'law, rule or
regulation' at that time." In this case, plaintiff's
complaint contained substantive allegations to satisfy these
minimal requirements, especially in light of the allegations that
actual sanctions and violations were issued by public bodies in
response to plaintiff's whistleblowing. If defendant required
more specificity, the Court recommended that it request a bill of
particulars. However, the Court also issued a reminder that,
ultimately (such as on summary judgment or at trial), "the
plaintiff has the burden of proving that an actual violation
occurred, as opposed to merely establishing that the plaintiff
possessed a reasonable belief that a violation occurred."
Originally published on the Employer's Law Blog
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