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NY Whistleblower Law Gets Expansive Reading

A New York Court has given an expansive reading to the New York Whistleblower law. The ruling provides more protection for individuals who report health and safety hazards in the workplace.

Our client was fired after complaining about lead, acid, and other chemicals leaking from industrial grade batteries in a mixed residential and commercial facility. He sued for reinstatement and damages under the New York State Whistleblower Law, N.Y. Labor Law Section 740.

The employer moved to dismiss the complaint on the grounds that: (a) our client did not mention specific laws that were violated when he complained abut the health hazards; and (b) the contamination did not pose a threat to the public because it occurred inside a private facility.

While these defenses may sound counterintuitive — after all, exposure to lead and other toxic chemicals are well-known health hazards — courts have read the NY whistleblower law very narrowly. The statute requires proof that health and safety laws were actually violated. A good faith belief is not sufficient. In addition, the violation must present a threat to “public health and safety.” Whistleblowers who report threats to the health or safety of an individual do not have protection.

In a landmark decision, Justice Robert Reed of the New York Supreme Court, New York County, ruled that our client’s complaint satisfied those requirements.

NY Whistleblowers Are Not Required to Identify Specific Laws That Were Violated

Justice Reed ruled that a whistleblower who reports health and safety hazards to his employer is not required to say that the law is being violated. It is enough to report the facts.

As Justice Reed noted in his decision, Section 740 “does not require that the whistleblower be a lawyer conversant in the law.” The whistleblower can “simply disclose the facts that would make out the basis of some violation of the law.” The whistleblower does “not need to go in and cite a particular statutory code.”

Justice Reed rejected the defendants’ argument that a whistleblower must “say that something happened that was illegal.” Rather, it was enough in this case for the plaintiff to report that there was a smell of toxic chemicals that was unhealthy and ought to be checked out.

Threats to Public Health and Safety May Include Hazards in Private Facilities

Justice Reed also ruled that a health hazard inside a private facility may constitute a threat to “public health and safety.”

The defendants argued that the complaint should be dismissed because a chemical leak inside a private facility does not present a “substantial or specific danger to the public” as required by the New York State whistleblower law.

Justice Reed rejected that argument and ruled that the hazard does not have to pose a threat to the public at large. The fact that the facility’s residents and visitors might be affected by the toxic chemicals was enough to satisfy the public health and safety element of the whistleblower claim.

The case is Debysingh v. North Shore Towers Apartments Inc., et al., Index No. 154310/2016 (Supreme Court, N.Y. County). Plaintiff is represented by John Howley of The Howley Law Firm. He may be contacted at (212) 601-2728.

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