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Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the “whistleblower”  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:

Labor Law § 740 (2), commonly referred to as the “whistleblower statute,” provides, in relevant part, 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” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement. * * *

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff 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, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” … . However, 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. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, CtApp 5-13-14

 

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