Know Your Rights
Amending Whistleblower Law

By JAMES A. BROWN

Last month I wrote a column for the New York Law Journal which advocated amending the state's public-employee whistleblower law. The column was a response to last summer's Garcetti v. Ceballos, a Supreme Court decision which sharply curbed a whistleblower's right to claim retaliation based on his or her First Amendment rights.

In Garcetti, the Supreme Court held that First Amendment "free speech" rights no longer protect whistleblowers who are retaliated against for complaints of government wrongdoing made in the course of "official duties." Thereafter, it became evident that legislation - a statute - was needed to restore some of the protection lost in Garcetti. Unfortunately, New York State's public-employee whistleblower statute, Civil Service Law 75-b, as currently written, is not that statute.

Thus, I argued that the Legislature now needs to amend Civil Service Law 75-b for the benefit of both public employees and the general public, which gains when whistleblowers are emboldened to root out corruption and wrongdoing in the public sector.

A Brief Review

My Law Journal column first examined Garcetti and then highlighted the differences between Civil Service Law 75-b and its private-sector counterpart, Labor Law 740 - topics previously addressed in former "Know Your Rights" columns.

In Garcetti, the court dismissed a Deputy District Attorney's First Amendment/retaliation complaint because his complaint - that a search warrant was defective - was made during the course of his "official duties." The court's decision departed from its earlier "balancing test" which drew no distinction based on "official duties." The old test first determined if the speech was of "public concern" and then whether the value of said speech outweighed the public employer's need for efficiency and to avoid disruption in it operations.

As for the comparison between laws, the weak public-employee whistleblower law is actually superior to its rarely-invoked private-sector counterpart. This is because public employees, under Civil Service Law 75-b, are protected against retaliation even if it turns out the government did not actually violate the law. A public-employee whistleblower must only demonstrate that he or she held a "reasonable belief" that a law, rule or regulation, representing "improper governmental action," was violated. The private-sector whistleblower law is also limited to complaints regarding public health and safety matters.

The Law's Deficiencies

Civil Service Law 75-b is deficient largely because it does not provide a "private cause of action" to all aggrieved whistleblowers. Stated another way, public employees are rarely permitted to file whistleblower lawsuits in court. In fact, courts dismiss such civil lawsuits whenever a whistleblower had the opportunity to file for arbitration or to participate in a Section 75 disciplinary proceeding contesting the (retaliatory) disciplinary charges.

Also, Section 75-b makes a public-sector whistleblower's burden of proof virtually impossible to satisfy. To prevail, a public employee must demonstrate that the retaliation was "based solely on" his or her whistleblowing. This "based solely on" standard is untenable because public employers can often uncover some "time and leave" infraction (or can argue some work-performance deficiency) to undermine an employee's showing that whistleblowing was the sole cause of his or her disciplinary charges.

Proposed Changes

Accordingly, I specifically proposed that all whistleblowers be entitled to file claims in court (while still retaining the right to raise whistleblowing as a defense at arbitration or in a Section 75 disciplinary proceeding). I also urged a revision to the whistleblower's burden of proof so that an employee must only show that the whistleblowing activity was "a motivating factor" (or a "substantial factor"), rather than the sole cause, for the employer's retaliatory discipline.

Finally, I advocated increasing the back-pay damages which may be recovered. Using the recently enacted New York City False Claims Act (which is intended to expose fraud in city-funded projects and programs) as a model, I proposed that the amount of backpay damages a whistleblower may collect be doubled. Immediately after Garcetti was decided this past summer, the U.S. Senate unanimously voted to strengthen a Federal whistleblowing law. Similar political will is needed in New York State to ensure that whistleblowers have the protection they need to safely disclose government corruption and wrongdoing in the interest of the general public.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.