Earlier this month, in Webb-Weber v. Community Action for Human Services, Inc., New York’s highest court overruled several appellate court cases in holding that an employee need not identify the specific law, rule or regulation allegedly violated by his or her employer in pleading a retaliation claim under New York’s whistleblower statute.
Ms. Webb-Weber served as COO of Community Action, a not-for-profit organization providing social services to the mentally and physically disabled and subject to oversight by the State. Plaintiff filed suit against Community Action claiming that it terminated her in violation of New York Labor Law § 740, the “whistleblower statute,” for registering complaints with public agencies concerning certain policies and practices of Community Action. Specifically, according to her complaint, Ms. Webb-Weber alerted Community Action to issues she claimed endangered the welfare and safety of patients, including falsification of patient medication and treatment records, inadequate fire safety, mistreatment of residents and deficiencies in patient care and in the facility itself. When those conditions continued unabated, plaintiff alleges she notified several state and city agencies, resulting in various sanctions and violations imposed against Community Action.
New York’s whistleblower statute provides: “An 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” that either “creates and presents a substantial and specific danger to the public health or safety, or … constitutes health care fraud.” As Ms. Webb-Weber’s complaint failed to identify which laws, rules or regulations Community Action allegedly violated, Community Action moved to dismiss for failure to state a claim. The trial court allowed plaintiff’s whistleblower retaliation claim to survive but the Appellate Division reversed and dismissed the claim.
The Court of Appeals, however, reversed the Appellate Division, finding that the plain language of the statute does not impose a requirement that an employee identify the specific law, rule or regulation allegedly violated. The Court ruled 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.” However, the Court noted that a plaintiff must ultimately prove that an actual violation of a law, rule or regulation occurred, as opposed to merely establishing that he or she possessed a reasonable belief that a violation occurred. And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety.”
What does this mean for employers? The key takeaway is that the relaxed pleading requirement will now make it easier for employees to withstand an employer’s pre-answer motion to dismiss as plaintiffs can be less precise in pleading a whistleblower retaliation claim. This holding, however, is relatively narrow, as it relates only to the pleading stage of litigation. The Court noted, in fact, that defendants can request in a bill of particulars (or other discovery device) that plaintiffs identify the particular laws, rules and regulations allegedly violated. And to recover damages under New York’s whistleblower statute, employees must ultimately prove an actual violation of a law, rule or regulation.