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THE NOT-FOR-PROFIT CORPORATION LAW CREATES A PRIVATE RIGHT OF ACTION AGAINST AN EMPLOYER FOR RETALIATION FOR WHISTLEBLOWING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action pursuant to Not-For-Profit Corporation Law 715-b alleging her employer retaliated against her for reporting two instances of improper fundraising by her employer. The question on appeal was whether Not-For-Profit Corporation Law 725-b gave rise to a private right of action:

This inquiry involves three factors: “‘(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . …

Not-For-Profit Corporation Law § 715-b is intended to protect, among others, employees who in good faith report any action or suspected action taken by or within the corporation that is illegal, fraudulent, or in violation of any adopted policy of the corporation from retaliation or adverse employment consequences. Here, the plaintiff is one of the class for whose particular benefit the statute was enacted … . Moreover, the legislative purpose is promoted by holding corporations accountable by allowing whistleblowers to commence civil actions to recover damages for retaliation or adverse employment consequence … . …

… [W]here there is no regulatory agency to otherwise enforce compliance with a statute, “the recognition of a private right of action would do no harm” … .

… [T]here is no regulatory agency to enforce compliance with Not-For-Profit Corporation Law § 715-b on behalf of an employee … . Ferris v Lustgarten Found., 2020 NY Slip Op 07357, Second Dept 12-9-20

 

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