On February 8, 2024, the Supreme Court of the United States rendered its decision for Murray v. UBS Sec., LLC, No. 22-660 (U.S. Feb. 8, 2024). 

The Court held that "[a] whistleblower who invokes [Sarbanes-Oxley] must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with 'retaliatory intent.'”

As such, whistleblowers now have a much lower burden when they are retaliated against for reporting to supervisors or the government their reasonable belief of financial crimes, like wire fraud, securities fraud, violating the SEC, or federal law. 

The state's taxpayer whistleblower law was recently expanded by Part DD of S4009C, the state budget, and employers should be nervous because now employees can bring lawsuits on suspicion that their employer evaded their tax obligations. 

The whistleblower law, which is formally called The New York False Claims Act (FCA), allows whistleblowers to bring suits against individuals and entities that knowingly submit deceptive claims to the government, including tax fraud. Initially, claimants were limited to individuals with specific knowledge of the taxpayer's preparation process. However, as amended under S4009C, New York State Finance Law Art. 13 §189-h now enables claims against individuals or entities who deliberately evade tax obligations where claims can be advanced solely on suspicions. 

Given that the FCA allows whistleblowers to recover monetary damages of 30 percent of the government's recovery and that the government can recover three times the loss sustained by the state, it bodes to reason that disgruntled employees are quite incentivized to bring claims in selling out their employers. 

The amendment permits claims on tax concealments from May 3, 2020, but does not allow raising retroactive claims in pending cases. Individuals and business entities should immediately reassess their filing obligations and be clear on which employees have access to their records. 

As amended, the FCA is very likely to shake up the dynamic between bosses and employees. With enticing financial incentives on the line for successful whistleblowing claims, things are about to get interesting. 

Effective January 26, 2022, A5144 will cause NYS private employees / independent contractors to have expanded whistleblower protection, under amended Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety. 

This expanded protection is not only for employees, but also for former employees and independent contractors. With independent contractor protection, real estate brokers should be on the lookout for their agents lodging complaints to the Department of State, amongst other bodies. It's therefore time for every private business in NYS to button-up its compliance protocol and avoid whistleblowers because silencing them is no longer possible. Beyond tightening up their policy manuals, employers will be required to post signage about this new law at their places of employment.

This law is huge for employee / independent contractor rights and it's going to get messy quickly with lots of lawsuits to follow in the near term. Think about how many times an employer previously leverages its position to blackball a whistleblower from the industry. Now, actionable retaliation includes adversely impacting a whistleblower's future employment. 

This is huge, just watch the news and you will know how many whistleblowers are out there. Think about what's going on with Facebook. What about the Alec Baldwin shooting? Maybe, if New Mexico's law was as broad and protective as this new New York law, the Baldwin shooting / gun mishap wouldn't have happened. Yes, the film crew voiced complaints, but their position was limited. In New Mexico, an employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning violations of occupational health and safety standards. N.M. Stat. Ann. § 50-9-25. However, there is no private right of action (besides common law) and only the possibility of reinstatement and back pay if the secretary of environment chooses to pursue a retaliation claim. In contrast, a New York employee is now protected if they "reasonably believes [the employer's wrong] poses a substantial and specific danger to the public health or safety" and that employee can sue in their own name within 2-years of the retaliation while seeking back pay, front pay, a civil penalty, punitive damages, and attorneys' fees. 

This law will launch a new era of compliance throughout New York industry. Is your business ready?