On May 13, 2014, the New York State Court of Appeals ruled that, under Labor Law §740(2), also known as the “whistleblower statute,” the complaint need not identify a specific law or rule allegedly violated by the employer to survive a motion to dismiss. See Webb-Weber v. Community Action For Human Services, Inc. et al., 2014 WL 1883937 (N.Y. May 13, 2014).
The plaintiff sued her former employer, Community Action for Human Services, Inc. (CAHS), which provides social serviced to disabled. The plaintiff claimed she was fired in retaliation for registering complaints about “issues endangering the safety and welfare of those persons who entrusted their care to CAHS.” Those complaints eventually led to disciplinary action and sanctions by the New York State Department of Health and the New York City Fire Department.
Among other claims, the plaintiff asserted that the employer violated Labor Law § 740(2)(a), which provides that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee…discloses, or 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 represents a substantial and specific danger to the public health or safety.”
CAHS moved to dismiss the Section 740 claim on the ground that the plaintiff’s complaint failed to state a cause of action because it did not identify the specific “law, rule or regulation” the plaintiff claimed CAHS violated. The lower courts agreed with CAHS and dismissed that claim; however, the Court of Appeals reversed, holding that “for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct.” This ruling reverses prior appellate court decisions which dismissed New York whistleblower claims where employees had failed to plead the actual law, rule or regulation their employers allegedly violated.1
While the Court of Appeal’s holding in Webb-Webber is not particularly good news for employers forced to defend New York whistleblower claims, the holding is relatively narrow. First, the decision applies only to pre-answer motions to dismiss. Second, the Court made clear that in order to recover the whistleblower statute, a plaintiff still has “the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred,” and that the violation must be of the kind that “creates a substantial and specific danger to the public health or safety.”
1 The Webb-Weber ruling also directly contradicts the New Jersey’s Conscientious Employee Protection Act (CEPA), which requires a plaintiff in a whistleblower suit to specifically identify the authority the employer allegedly violated.