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“Whistleblower Statute” Cause of Action Should Have Survived the Motion to Dismiss—No Need to Cite Particular Statute, Rule or Regulation Alleged to Have Been Violated by the Employer in the Complaint

The Second Department determined plaintiff’s Labor Law 740 cause of action should have survived a motion to dismiss for failure to state a cause of action.  “A cause of action based upon Labor Law § 740, commonly known as the ‘whistleblower statute,’ is available to an employee who ‘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 presents a substantial and specific danger to the public health or safety’…”. The court noted that, to survive dismissal, the particular law, rule or regulation which was purportedly violated need not be specified in the complaint:

Here, the amended complaint alleged, inter alia, that the plaintiff’s employment with the corporate defendants was terminated after he complained to the individual defendants and the human resources department about certain activities and practices which the corporate defendants engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public safety. Notably, “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” … . Ulysse v AAR Aircraft Component Servs., 2015 NY Slip Op 04474, 2nd Dept 5-27-15

 

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