Public Employee Whistleblowers in New York: Civil Service Law § 75-b

Government workers in New York have their own whistleblower statute. Under Civil Service Law § 75-b, a New York State law, a public employer may not dismiss or take other disciplinary or adverse personnel action against a public employee because the employee disclosed to a governmental body either information about a violation of law that creates a substantial and specific danger to public health or safety, or information the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.⁠^[1] Two features of its text are set out below alongside the private-sector statute, Labor Law § 740: the report must go to a governmental body, and for an employee with arbitration or disciplinary-hearing rights the retaliation issue is raised in that process.⁠^[1][3]

Who is covered by § 75-b?

The statute defines "public employer" to mean:⁠^[6]

• the State of New York;⁠^[6]
• a county, city, town, village or any other political subdivision or civil division of the State;⁠^[6]
• a school district or any governmental entity operating a public school, college or university;⁠^[6]
• a public improvement or special district;⁠^[6]
• a public authority, commission or public benefit corporation; and⁠^[6]
• any other public corporation, agency, instrumentality or unit of government that exercises governmental power under the laws of the State.⁠^[6]

A "public employee" is any person holding a position by appointment or employment in the service of a public employer. The definition leaves out judges and justices of the unified court system and members of the Legislature.⁠^[6]

The list is made up of State and local bodies; it does not name the United States or federal agencies.⁠^[6] People who work for the federal government follow a different system, outlined in federal employees in New York.

What kinds of disclosures are protected?

Section 75-b(2)(a) protects the disclosure of two categories of information.⁠^[1]

Category in § 75-b(2)(a)	What the State statute says
(i) Danger to the public	Information "regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety."⁠[1]
(ii) Improper governmental action	Information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."⁠[1]

"Improper governmental action" is defined as any action by a public employer or employee, or an agent of either, that is undertaken in the performance of official duties, whether or not within the scope of employment, and that violates any federal, state or local law, rule or regulation.⁠^[1]

The wording of the two categories is not the same. The reasonable-belief language appears in category (ii); category (i) is phrased in terms of a violation that "creates and presents" the danger.⁠^[1] The private-sector statute is worded differently again: Labor Law § 740 protects disclosure of an activity the employee "reasonably believes" violates a law, rule or regulation or poses a substantial and specific danger to public health or safety.⁠^[7]

Who has to receive the report?

The disclosure must be made "to a governmental body."⁠^[1] That term is defined to include:⁠^[6]

• an officer, employee, agency, department, division, bureau, board, commission, council, authority or other body of a public employer;⁠^[6]
• an employee, committee, member or commission of the legislative branch of government;⁠^[6]
• a representative, member or employee of a legislative body of a county, town, village or other political or civil subdivision;⁠^[6]
• a law enforcement agency or any of its members or employees; and⁠^[6]
• the judiciary or any employee of the judiciary.⁠^[6]

The first item names an officer or employee of a public employer, so the definition is not limited to outside bodies.⁠^[6] News outlets and social media are not on the list.⁠^[6]

Is there a "tell your agency first" rule?

Some summaries describe a duty to report first to the employee's "appointing authority" and give it time to act before going elsewhere. The current text of § 75-b(2) contains only paragraph (a) and has no such requirement.⁠^[2] This guide does not state when or how any earlier version changed.

What employer actions are covered?

The prohibition reaches dismissal and "other disciplinary or other adverse personnel action" regarding the employee's employment.⁠^[1] The statute defines "personnel action" as an action affecting compensation, appointment, promotion, transfer, assignment, reassignment, reinstatement or evaluation of performance.⁠^[6]

There is a built-in limit. Section 75-b(4) says nothing in the section prohibits "any personnel action which otherwise would have been taken regardless of any disclosure of information."⁠^[5] The same subdivision says the section does not diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement.⁠^[5]

Where is a § 75-b claim decided?

For an employee who has arbitration or disciplinary-hearing rights, the statute routes the retaliation issue into that process.⁠^[3] Section 75-b(3) sets out three paths.

1. As a defense to discipline. An employee who is subject to dismissal or other discipline under a final and binding arbitration provision or other disciplinary procedure in a collectively negotiated agreement, under Civil Service Law § 75, or under another State or local law, and who reasonably believes the discipline would not have been taken but for the protected disclosure, may assert that as a defense before the arbitrator or hearing officer.⁠^[4] The arbitrator or hearing officer has to consider and determine the defense as part of the award or decision.⁠^[4] If the finding is that the discipline is "based solely" on the employer's violation of § 75-b, the proceeding is dismissed, or dismissal is recommended, and the employee is reinstated with back pay if appropriate.⁠^[4]
2. As a claim in arbitration. Where a collectively negotiated agreement prevents the employer from taking adverse personnel actions and has a final and binding arbitration provision for alleged violations, the employee may assert the retaliation as a claim before the arbitrator.⁠^[4] If the arbitrator determines that the adverse personnel action is based on a violation of § 75-b, the remedy is whatever the agreement permits.⁠^[4]
3. As a court action. Where the employee is not subject to either of those provisions, the employee may commence an action in a court of competent jurisdiction "under the same terms and conditions as set forth in article twenty-C of the labor law."⁠^[3]

The standard the statute gives the employee in the first two paths is that the action "would not have been taken but for" the protected conduct.⁠^[4] Union-represented employees should also read union members: grievances and discrimination claims, which explains how a grievance relates to claims under the discrimination statutes.

What "the same terms as article 20-C" brings with it

Article 20-C of the Labor Law is the private-sector whistleblower article. Its main section, § 740, allows a civil action within two years after the alleged retaliatory action, entitles the parties to a jury trial, and lists the relief a court may order: an injunction, reinstatement or front pay, restored fringe benefits and seniority, lost wages and benefits, reasonable costs and attorney's fees, a civil penalty of not more than $10,000, and punitive damages if the violation was willful, malicious or wanton.⁠^[8][9][10] It also gives the employer a defense that the action was predicated on grounds other than the employee's protected conduct.⁠^[11]

Section 75-b says only that the action is brought "under the same terms and conditions as set forth in article twenty-C of the labor law"; it does not list which terms carry over to a public employer.⁠^[12] Treat the list as what the cross-referenced statute says, not as a settled description of a § 75-b lawsuit.

Deadlines and notice-of-claim rules

Section 75-b has no time limit written into it; the only period in play is the one in the Labor Law article it borrows.⁠^[3][8] Separate statutes require written notice of a claim against some public employers within a short period.

• School districts. Education Law § 3813(1) says no action "for any cause whatever" may be maintained against a school district, board of education or BOCES unless a written verified claim was presented to the governing body within three months after the claim accrued.⁠^[13] Section 3813(2-b) says that, notwithstanding any other law providing a longer period, no action may be commenced against those entities more than one year after the cause of action arose.⁠^[14]
• Counties. County Law § 52 applies the notice-of-claim procedure of General Municipal Law § 50-e to a broad range of damages claims against a county.⁠^[15]
• Tort claims generally. Where a notice of claim is a condition of a tort claim against a public corporation, General Municipal Law § 50-e sets a 90-day period for serving it.⁠^[16]

Whether and how those notice statutes apply to a § 75-b action is a question for individual legal advice; given the one-year limit in Education Law § 3813(2-b), a public employee should not assume that two years is the only period in play.⁠^[13][14] The page on notice of claim for public employees goes through these statutes, and missed the deadline covers what can and cannot be repaired.

Other New York laws that reach public employees

Law	Layer	How it treats public employees
Labor Law § 215 (complaints about Labor Law violations)	New York State	Does not apply to employees of the State or any municipal subdivisions or departments.⁠[17]
Labor Law § 741 (health care)	New York State	Its definition of employer includes the State and any political subdivision that provides health care services in the listed settings.⁠[18]
Labor Law § 27-a (public employee safety and health)	New York State	A public employee disciplined for a safety complaint may file a complaint with the Labor Commissioner within thirty days after the violation.⁠[19]
Labor Law § 201-d (off-duty conduct)	New York State	Lists union membership and the exercise of rights under article 14 of the Civil Service Law among protected activities.⁠[20]
State Finance Law § 191 (New York False Claims Act)	New York State	Protects current or former employees, contractors and agents "of any private or public employer."⁠[21]
National Labor Relations Act	Federal	Its definition of "employer" does not include any State or political subdivision of a State.⁠[22]
New York State Human Rights Law (NYSHRL), Executive Law § 296(7)	New York State	Separately bars retaliation against any person for opposing discrimination, filing a complaint or testifying, or requesting a reasonable accommodation.⁠[23]

Retaliation for complaining about discrimination or harassment, as opposed to other kinds of wrongdoing, is a separate subject; start with what is workplace retaliation. Health care staff at public hospitals should compare Labor Law § 741, and reports of fraud on public money are covered in federal whistleblower laws.

Practical steps for a public employee

• Find out which process applies to you: check your union contract for an arbitration clause and whether your title has hearing rights before discipline. That answer determines which of the three paths in § 75-b(3) applies.⁠^[3]
• Write down what you disclosed, to which office or official, and on what date, and keep a copy of anything you sent.
• If disciplinary charges are served, § 75-b(3)(a) allows retaliation to be asserted as a defense in that proceeding; ask your union representative or a lawyer how and when to raise it.⁠^[4]
• Note the date of each adverse action as it happens, and have the filing dates checked promptly, since more than one clock may be running.

A comparison of every retaliation time limit is in retaliation deadlines compared.