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.”