The Appellate Division in New York State recently ruled that a whistleblower complaint under Section 740 does not bar a plaintiff filing a separate sexual harassment complaint. In Lee v. Woori Bank, two male employees reported allegations of sexual harassment to a supervisor. Specifically, both employees alleged that a supervisory employee (i) “consistently used foul language, profanity, talked dirty, and made sexual comments”; (ii) “made unwelcome homosexual advances and comments” towards one of the male employees; and (iii) made unwelcome physical touching of one of the employee’s buttocks and body. The employees allege they were demoted and fired after they complained of the supervisor’s conduct. Our New York Sexual Harassment Attorneys have represented many employees who have been subject to unwanted advances and/or been retaliated against because of their complaints.
What is Section 740 of the New York Labor Law and What is its Waiver Provision?
Under Section 740, an employer may not take any “any retaliatory personnel action against [said] employee because such employee . . . discloses, 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 which violation creates and presents a substantial and specific danger to the public health or safety.” Labor Law § 740(2)(a). The law also precludes an employer from taking retaliatory action if an employee objects to or refuses to participate in any such activity. See Section 740(2)(c). The court dismissed plaintiffs’ claims under Section 740 because the alleged conduct did not create a substantial and specific danger to the public health and safety – it primarily focused on inappropriate conduct towards them.
Section 740 contains a waiver provision prohibiting certain claims being brought at the same time. Specifically, it states “[n]othing 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; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” As a result, the lower court dismissed plaintiff’s retaliation claims under the New York City Human Rights law. However, the court allowed plaintiffs to proceed with their sexual harassment claims and stated that they are not prohibited by the waiver clause because they are “separate and independent from the retaliation” claim. While the defendants have denied any wrongdoing, the plaintiffs’ claims for negligent hiring and sexual harassment will proceed.
This case is an example how multiple statutes can interact with each other and their impact. If you have been subject to sexual harassment or witnesses illegal conduct in the workplace, contact our office to schedule a consultation with an experienced New York Employment Lawyer to learn your rights and options.