The 30-year Quest to Protect Whistleblowers

(NELA/NY Chair of Legislative Committee Miriam Clark, Courageous Advocate Sen. Jessica Ramos, Courageous Plaintiff Enrichetta Ravina, Courageous Counsel Stephen Bergstein and Executive Director Roseni Plaza)

NELA/NY members Wayne N. Outten, Ronald G. Dunn, Miriam F. Clark and Stephen Bergstein and New York State Senator Jessica Ramos contributed to this blog.
October 2022

At this year’s gala, we celebrated the incredible work of NELA/NY members, with the unwavering support of legislators like State Senator Jessica Ramos, to amend New York’s whistleblower protections, an effort that took three decades.

“It’s truly a story about tenacity, persistence, passion, commitment and hard work,” says Wayne
N. Outten, who founded NELA/NY in 1985 and served as president for 15 years. “I am not aware of any bill in our field that has taken so long, that has such a long and tortured history.” For the full story about how NELA/NY members rallied together to amend New York Labor Law Section 740, see the slideshow.

Passed in 1984, the old law was extraordinarily narrow. It protected only employees who blew the whistle on employer conduct that was both illegal and created a substantial and specific danger to public health or safety. It also made it necessary for whistleblowers to prove that their allegations were correct – a reasonable belief was not enough – which was not the case in any other state. It was well-known that these measures made it very difficult for plaintiffs to win, so amending the law became the focus of NELA/NY members’ efforts.

Through the decades, NELA/NY members worked tirelessly to garner support for bills to amend the law. They wrote letters, made phone calls, held meetings and testified in the legislature. The impetus for change finally came in 2020 with the COVID pandemic, which led to a dramatic increase in whistleblowing over unsafe work conditions that were potentially deadly.
In 2021, both houses passed an amended bill, and it was signed into law and became effective in January 2022.

Many of the old barriers to whistleblower protection were lifted. For example, whistleblowers no longer have to prove that the employer actually violated the law or that the employer’s conduct created a danger to public health or safety; they simply need to prove that their complaint was based on a reasonable belief. While the old law required whistleblowers to report what they disclosed to their employer first, the new law allows employees to skip that step in some instances. For more details about the law, view the CLE presentation.

Workers in New York are much more protected now than they ever were, and whistleblowers are being recognized for the important role they play in creating safer workplaces and a more just society for everyone.
 
The ‘abomination’ is passed

In 1980, Outten and three other “idealist lawyers,” as he called them, drafted a model state whistleblower protection statute. At the time, none of the states had whistleblower laws. Outten and his colleagues disseminated their version among lawyers around the country who were doing similar work and trying to improve the state of the law for employees. They also introduced it in the New York Legislature through the New York Civil Liberties Union’s Legislative Director Tom Stoddard.

“It didn’t get anywhere in ‘81, ‘82, ‘83,” says Outten. Then, on the very last day of the legislative session in June 1984, both houses passed Section 740, and it was signed by the governor.
But it wasn’t what Outten and his colleagues proposed.

“It was an abomination,” he says. “They had torn it to pieces, divided it into a public-sector part and a private-sector part, and then they ripped the heart out of it. In the key provision, they put an ‘and’ instead of ‘or.’” They also added an election-of-remedies provision providing that an employee who filed a claim under Section 740 could not bring any other claim against the employer. “Nobody had ever heard of such a thing,” says Outten. “It discouraged people from bringing claims.” It also limited potential recoveries.

While the model statute led to meaningful protections in New Jersey and other states, it was not at all helpful to employees in New York.

“The emasculated Section 740 was designed by the legislature to appear to be taking action to protect whistleblowers, while in fact, not doing so,” says Outten. “It was a toothless tiger.”

For years, the statute was widely criticized by many people in the legal community. “It was such a terrible law for so long, and so many people knew it from all quarters,” says Outten, adding that he couldn’t help but feel somewhat responsible.

The Sabetay case exposes loopholes

Before Section 740 was passed, Outten had brought his first big employment case – a whistleblower case – under New York common law. He represented Alex Sabetay, who’d been fired from his job at a drug company after uncovering alleged financial mishandlings. “I put my heart and soul into that case,” says Outten, who took it all the way to the highest court in New York, the New York Court of Appeals.

In the meantime, the New York Chamber of Commerce drafted an amicus brief in support of Sabatey’s employer. The state was not in good shape financially, and employers – and tax dollars – were leaving for New Jersey and Connecticut. There was concern that if the common law became more pro-employee, it would push even more employers out of the state.
 
“I think that was the key point that helped the judges decide,” says Outten. In March 1987, they ruled 6-0, with one recusing, that Sabetay’s conduct was not protected under New York common law. Outten was defeated.

“I thought I was on the side of justice and truth,” says Outten, “and I believe the law should have been changed in accordance to what I argued.” But the court said it was up to the legislature, not the courts, to change the law. In fact, in support of its position, the court cited the enactment of Section 740. Fixing the flawed Section 740 became even more important.

After the Sabetay case, Outten filed several whistleblower cases under Section 740 but lost them all, including two on appeal. Eventually, he gave up on Section 740, refusing to take any more cases under that statute, and turned his attention to the legislature – again.

NELA/NY is formed

In 1985, a year after Section 740 was passed, Outten founded the New York chapter of the National Employment Lawyers Association. “NELA was not founded for the purpose of trying to change the law, but obviously law reform was within the scope of its possible activities,” he says.

In the late 1980s, NELA/NY began to form what would later solidify into its legislative committee. “We all agreed that we needed to amend the whistleblower law,” says Outten.

From the very beginning of their efforts, NELA/NY members traveled to Albany to testify against the statute. On one of those occasions in the early 1990s, Outten met Ronald G. Dunn. Both had been invited to speak. After the session, Outten told Dunn about NELA/NY, and Dunn agreed to join – expanding the organization’s reach from the New York City area farther north in New York. Dunn agreed to help navigate the political scene at the state’s capital.

Hope set on Bordell v. GE

While Outten, Dunn and other NELA/NY members became more familiar with the legislature and how laws – or “the sausage” as they say – are made, employment lawyers all over the state continued to try whistleblower cases without success. “There were almost no cases where an employee won,” says Outten, although some came closer than others. “There were numerous cases in which courts held that the employer’s conduct might be a violation of the law, but it didn’t create a substantial and specific danger to public health or safety.”

Then Dunn was asked to represent Frank Bordell, a health physicist who’d been fired after blowing the whistle on allegedly unlawful and unsafe conduct at a General Electric nuclear power plant near Albany. “His job was to measure all the workers’ exposure to radioactivity,” says Dunn, adding that Bordell did so by measuring toxin output in breath, urine and sweat. “It’s pretty complicated stuff.”
 
Over time, Bordell noticed that several of his former and current colleagues were dying of various cancers. “It seemed odd to him,” says Dunn, and so Bordell started checking old records, some of which were so old they were pen and paper. Bordell recalculated using modern, updated programs. “He was seeing that if this sample bore out, it grossly underestimated the amount of radiation these workers had been exposed to over the years,” says Dunn. Bordell alerted his supervisors, was told to stop digging, didn’t stop and was subsequently fired.

In court, Bordell was asked to testify. “He’s a scientist, a moral guy and completely precise in his language, so when he was asked, ‘Are you right?’, he said he had a theory but would first have to do the experiment,” says Dunn. Since Bordell had been fired before he could prove he was right, they lost the case. New York’s highest court said that, in order to sustain a claim under the statute, it wasn’t enough for the employee to have a reasonable, good faith belief that the employer’s conduct was unlawful and a danger to public health and safety.

“You had to be right, which is not that law in any other state,” says Outten. He added that the 1996 decision in the Bordell case was a crushing defeat felt by many employment lawyers. “It was the final nail in the coffin.”

The IDC collapses

Given the language and interpretation of Section 740, NELA/NY members honed in on two goals: (1) changing the “and” to an “or,” so plaintiffs didn’t have to prove that the conduct was both illegal and a danger to public health or safety, and (2) providing that a reasonable belief was sufficient. In the years that followed, they wrote letters, made phone calls, met with influential lawmakers, made contributions to various political campaigns, and even organized NELA/NY’s first gala to raise money to hire a lobbyist to help them. They testified at hearings and drafted and promoted amended bills – all of which were ultimately buried underneath more pressing issues or rejected by one of the legislative houses.

“We tried and we tried, and we just kept running into the basic reality that, even if we could get it passed through the Assembly, we could not do the same in the Senate,” says Outten. One key reason, he added, was that the Republicans controlled the Senate. “As long as they did, and the business community influenced the Republicans, there was no chance of the legislature amending the statute,” he says. In 2013, Democrats finally achieved a majority in the Senate, but the Independent Democratic Caucus (IDC), a small group of Democrats, aligned with Republicans. “We had the same problem,” says Outten.

Finally, in the 2018 election, the IDC collapsed, as many of its members were not reelected, leaving the Democrats truly in control. “That set the stage for a more progressive Senate,” says Miriam F. Clark, who became NELA/NY’s president that same year. She began working closely with Margaret McIntyre, NELA/NY’s legislative committee chair, and Lisa Lipman, who led the subcommittee on the whistleblower protection bill.
 
Referring to NELA/NY’s legislative committee, Dunn said, “My whole legal career, the room was dominated by men. But then, it was dominated by these wicked smart women.”

The subcommittee also included Outten, Dunn, Marc Susswein, Kendall Onyendu and Michael
E. Grenert, who had been involved in efforts to amend Section 740 for many years and became the subject matter expert on the bill, supplying legal research and patiently making the case over and over again to legislative staffers.

Under Clark’s leadership, NELA/NY members fine-tuned their message, launched a campaign on social media and secured important meetings that NELA/NY members didn’t even know to ask for before to garner support. “We had figured out how the legislature works, and we were using it to our advantage,” says Dunn.

This time, NELA/NY moved forward without a lobbyist and without making a single campaign donation.

Two versions, one dilemma

In the Assembly, Michael Benedetto had staunchly carried a bill that would amend Section 740 to eliminate the restrictions that rendered it toothless. Year after year, the bill was reported out of committee and sometimes passed in the Assembly but was stymied in the Senate.

After 2018, the Senate version of Benedetto’s bill was sponsored by Senator Jessica Ramos, the new Chair of the Senate Labor Committee and a fierce advocate for working people.
Ramos won her seat in the 2018 election. Supporting workers had always been part of her platform. “From a very early age, as the daughter of immigrants, I saw firsthand how tough it can be to speak up at your workplace and call out unjust, abusive behavior,” she says.

Of the importance of protecting whistleblowers, Ramos says, “These are all workers who didn’t really have a means or a mechanism, a structure laid out in the law that empowered them to speak up.”

At the same time, a similar bill was introduced in the Senate by Brad Hoylman, with a companion Assembly version sponsored by Helene Weinstein.

NELA/NY members traveled to Albany, met with legislators and wrote op-ed pieces, but by the end of 2019, the bills still languished.

“Then COVID hit,” says Dunn.

COVID made it clear

In March 2020, New York became one of the country’s hot spots for the contagious and deadly virus. There was a dramatic increase in the number of workers blowing the whistle on unsafe
 
conditions. “Ordinary people were coming forward saying, ‘We don’t have masks at work, but we are being required to go to work,” says Clark. In some of those cases, she added, non-essential workers were forced to go into their offices in violation of the Governor’s stay-at-home executive orders.

NELA/NY members also received phone calls from medical professionals who were caring for the sick but lacked adequate protective gear. Clark realized those cases were particularly poignant and posed a unique opportunity to convince legislators.

“The examples that we started using that were really powerful to legislators were the COVID workplace examples,” says Clark. “I was able to say, ‘People are dying.’” She added that the examples also helped the business community understand that whistleblowers serve an important purpose. “During the COVID era, that became clear,” says Clark. “Whistleblowers were coming forward and being seen as clearly acting in the public good.”

In June 2021, both houses passed an amendment to New York Labor Law Section 741, which strengthened protections for workers involved in patient care. “Doctors and nurses were all of the sudden protected if they complained – even on social media,” says Clark. “That was the first crack.”

At last, the statute is amended

The next legislative session began in January 2021, and this time, lawmakers in both houses seemed poised to move forward together with changes to Section 740.

NELA/NY members and members of the Assembly JoAnne Simon and Phil Steck co-sponsored the bill and worked hard to muster support, which was backed by Assembly leadership and Speaker Carl E. Heastie. On the Senate side, Senator Andrea Stewart-Cousins and Senator Ramos rallied the Senate around the bill.

NELA/NY members, led by subcommittee chair Lipman, furiously contacted legislators, wrote letters, handled Zoom meetings and rallied allies. Finally, in early June, the bill passed the Senate and then, in a late-night session, the Assembly. Clark watched the proceedings on her phone while waiting for her train at the station. “I thought that at any moment, someone was going to introduce a chapter amendment that would change the bill,” she says. “That was a real nail-biter.”

The day of NELA/NY’s annual gala in October 2021, members received notice that Governor Kathy Hochul had signed the bill. At the association’s first in-person event since the start of the pandemic, Clark, now the chair of NELA/NY’s legislative committee, stood at the podium and announced the news to everyone. “It seemed unreal,” she says.

The two points NELA/NY members were set on changing were finally changed. Whistleblowers are now protected if they complain of either illegal conduct or conduct that is a danger to public
 
health or safety. They also only have to have a reasonable belief – they no longer have to prove that their allegations were correct. “That’s a huge change in the basic law protecting whistleblowers,” says Outten.

While the old law required whistleblowers to report what they uncovered to their employer before reporting it to the authorities, the new law contains exceptions (e.g., when doing so would lead to the destruction of evidence or other types of harm). Nevertheless, Clark says she still worries that any requirement that a worker report their concerns to the employer might have a chilling effect. She also added that she would have liked to see damages for emotional distress suffered by whistleblowers included in the bill; but overall, she says it’s a giant leap forward. “Once workers understand that they can complain about illegal or dangerous conduct without facing termination or other consequences, we will see more people coming forward,” says Clark, adding that having safer workplaces and safer products is in the interest of society.

Dunn agreed. “What we’ve done through NELA/NY is get closer to a more just society,” he says. “It took us 30 years, but that’s a noble goal.”