Ensure Safer Jobs by Protecting Whistleblowers from Retaliation
Everyone should be safe when they go to work. But too often workers express their concerns about risks or dangers on the job, they face retaliation, including being fired, from employers. Notably during the pandemic, one in eight workers has perceived possible retaliatory actions by employers against workers in their company who have raised health and safety concerns. The Safe at Work Act protects employees who speak up about dangerous conditions, including COVID risk, from retaliation. Protecting these whistleblower heroes will mean more protections for all workers.
Employees at risk in dangerous workplaces
Public health experts
Businesses at risk if their unsafe practices are identified
This act shall be known as the Safe At Work Act
An act to ensure that all workers are able to raise concerns about workplace conditions that violate the law or present an immediate and substantial risk to health and safety without fear of retaliation or dismissal.
(a) Prohibitions. No employer or person may discharge, demote, refuse to hire or take any other adverse action against an employee, former employee, or person because such employee, former employee or person has done any of the following:
-(i) discloses to a supervisor or a public body, or expresses an intent to make a disclosure to a public body regarding an illegal or dangerous business activity;
-(ii) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any illegal or dangerous business activity or an activity which endangers workplace or public safety or health or otherwise at the request of the public body;
-(iii) objects to, or refuses to participate in, any illegal or dangerous business activity.
(b) Application. The protection against retaliatory action provided above shall apply to any employee who in good faith reasonably believes that any illegal or dangerous business activity has occurred or will occur, based on information that the employee in good faith reasonably believes to be true.
(c) Violation; enforcement, remedies.
-(i) An employee who has been the subject of a retaliatory action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth below within two years after the alleged retaliatory action occurred, DEPARTMENT or ATTORNEY GENERAL may also bring enforcement actions as below.
–(1) It shall be considered a rebuttable presumption of retaliation if an employer or any other person takes an adverse action against a person within 90 days of the person’s exercise of rights protected in this Section. The employer may rebut the presumption with clear and convincing evidence that the adverse action was taken for a permissible purpose.
–(2) Any action authorized by this section may be brought in the county in which the alleged retaliatory action occurred, in the county in which the complainant resides, or in the county in which the employer has its principal place of business. In any such action, the parties shall be entitled to a jury trial.
–(3) Except as otherwise provided in this section, a violation of this section is established when the complainant demonstrates that a motivating factor for the retaliatory action violates subdivision one of this section.
-(ii) The protections provided by this section shall also be enforced by DEPARTMENT and the ATTORNEY GENERAL.
-(iii) DEPARTMENT or ATTORNEY GENERAL may bring an action to collect relief as set forth in subdivision four of this section within two years after the alleged retaliatory action occurred, including costs, disbursements and attorneys’ fees.
-(iv) DEPARTMENT or ATTORNEY GENERAL shall not be required to pay the filing fee or other costs in connection with any action. If DEPARTMENT or ATTORNEY GENERAL prevails in an enforcement action, the aggrieved party shall be awarded damages and STATE shall be awarded penalties and costs.
(d) In any action brought pursuant to this section, the following relief may be sought:
-(i) the reinstatement of the employee to the same position held before the retaliatory action or to an equivalent position, or front pay in lieu of reinstatement;
-(ii) the reinstatement of full fringe benefits, seniority rights, and any other previously-existing rights;
-(iii) compensation and other remuneration;
-(iv) compensatory damages lost wages, benefits, and other economic loss and emotional distress;
-(v) the payment by the employer of reasonable costs, disbursements, and attorney’s fees;
-(vi) an injunction to restrain the employer’s continued violation of this section;
-(vii) liquidated damages up to $20,000 and
-(viii) in an action brought by DEPARTMENT or the ATTORNEY GENERAL, a civil penalty of not less than one thousand nor more than ten thousand dollars provided, however, that if DEPARTMENT finds that the employer has violated the provisions of this section in the preceding six years, he or she may assess a civil penalty of not less than one thousand nor more than twenty thousand dollars.
(e) Existing rights. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract.
(f) Publication. Every employer shall inform employees of their protections, rights and obligations under this section, by posting a notice thereof. Such notice shall be posted conspicuously in English and in the language(s) commonly spoken among employees on the job site in easily legible form in easily accessible and well-lighted places customarily frequented by employees and applicants for employment. DEPARTMENT shall provide template notices on its website for use by employers in language(s) commonly spoken among employees in STATE.
-(i) “Illegal or dangerous business activity” means any practice, procedure, action or failure to act by an employer, or an employee or agent of such employer, taken in the course of the employer’s business, whether or not within the scope of employment or agency, that: (i) is in violation of any law, rule or regulation; or (ii) creates and presents a substantial and specific danger to the public health or safety.
-(ii) “Public body” means the United States Congress, any state legislature, or any elected local governmental body, or any member or employee thereof; any federal, state, or local court, or any member or employee thereof, or any grand or petit jury; any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof; any federal, state, or local law enforcement agency, prosecutorial office, or police or peace officer; any federal, state or local department of an executive branch of government; or any division, board, bureau, office, committee, or commission of any of the public bodies described herein.