Retaliation under New York law occurs when an employer takes adverse action against an employee for exercising statutorily protected rights. New York prohibits this conduct across multiple legal frameworks, and employees who face retaliation may be entitled to reinstatement, back pay, and other relief.

Key Protections Against Retaliation Under New York Law

Some key legal protections against retaliation for employees in New York include:

New York Labor Law Section 215 protects private employees only. Under NYLL Section 215, a private employer may not discharge, penalize, or in any manner retaliate against employees for engaging in legally protected activity. Retaliation occurs when an employer takes an adverse action, whether within the scope of the employee’s job duties or not, specifically because that employee exercised rights under the law.

New York Labor Law Section 740 separately prohibits retaliatory action against employees—including public, private, independent contractors, and former employees—who disclose, or threaten to disclose, employer conduct that the employee reasonably believes violates a law, rule, or regulation, or that poses a substantial and specific danger to public health or safety. Likewise, Section 741 protects employees in the healthcare field.

New York Civil Service Law Section 75-B protects public employees by prohibiting public employers from retaliating against employees who report violations of law or improper governmental actions to an appropriate governmental authority.

The New York State Human Rights Law (NYSHRL) prohibits employers from discriminating against employees based on protected characteristics such as race, sexual orientation, disability, gender identity or expression, marital status, or military status. NYSHRL further prohibits employers for retaliating against employees who oppose unlawful discrimination or participate in the complaint process, or request disability accommodations.

What Activities Are Protected Under New York Law?

New York law protects employees who engage in protected activities, including:

• Whistleblowing by reporting a violation of law to an appropriate authority, if supported by the employee’s reasonable belief that the violation took place
• Filing a complaint about a possible labor law violation with the Department of Labor or with the employer directly
• Providing information to the Department of Labor or testifying in an official proceeding under labor laws
• Filing or Participating in a discrimination claim whether on behalf of oneself or another employee
• Participating in an investigation or proceeding, including those initiated by a public body
• Objecting to, or refusing to participate in, an employer activity the employee reasonably believes violates the law
• Requesting disability accommodations or utilizing accommodations
• Exercising any right protected under federal, state, or local law, including legally protected absences

What Actions Qualify as Employer Retaliation?

Adverse actions against an employee are broadly defined under New York law and are not limited to termination. The New York State Department of Labor identifies a range of employer conduct that may constitute retaliation, depending on the circumstances:

• Dismissal from employment or demotion
• Reduction in pay or hours, or reassignment to less desirable shifts or locations
• Disciplinary action or more intensive supervision
• Withdrawal of previously granted privileges or assignment to more burdensome duties
• Threats to report an employee’s immigration status or the status of a household member to federal, state, or local authorities

Retaliation can also take subtler forms, like negative performance reviews issued shortly after a complaint, or gradual erosion of job duties. Courts examine the timing and circumstances of adverse actions to determine whether a causal connection exists.

How Do You Prove Retaliation in a New York Employment Case?

Establishing a retaliation claim requires demonstrating three elements: (1) that the employee engaged in a protected activity, (2) that the employer took an adverse action, and (3) that a causal connection exists between the two. Timing can be relevant, but proximity alone is not proof of a causal connection.

Employees should preserve records of the original complaint (the date, recipient, and nature of the disclosure) along with any written communications like emails or performance reviews that reflect changes in treatment. Once an employee presents sufficient evidence, the burden shifts to the employer to offer a legitimate, non-retaliatory explanation.

Retaliation Under NY Labor Law vs. Federal Law

New York’s retaliation protections operate alongside and sometimes exceed those available under federal law. Many federal laws protect whistleblowers, but anti-retaliation provisions are often specific to a particular occupation, employee or employer category, statute being violated, or area of concern. For example, the Fair Labor Standards Act (FLSA) prohibits retaliation against employees who file wage and hour complaints, and the Equal Employment Opportunity Commission (EEOC) enforces anti-retaliation provisions under Title VII and related statutes.

Federal claims carry different filing deadlines and procedural requirements than those under New York law. The Department of Labor may investigate and enforce New York retaliation claims independently without requiring the employee to initiate a civil action. Employees should understand which laws apply to a given claim, and not assume federal protections are coextensive with those available under state law. An attorney can advise on which laws apply and which would be most beneficial for an employee in your circumstances.

What Damages Can You Recover in a Retaliation Claim?

Employees who establish a retaliation claim under New York law may be entitled to several forms of relief. Under Section 215, for example, the Department of Labor may order:

• Payment of lost compensation and damages
• Civil penalties ranging from $1,000 to $10,000 for a first offense and up to $20,000 for a second offense
• Any other appropriate relief

Under Section 740, a court may additionally order reinstatement, compensation for lost wages and benefits, payment of reasonable attorney’s fees and costs, a civil penalty not to exceed $10,000, and punitive damages where the violation was willful, malicious, or wanton.

How Long Do You Have to File a Retaliation Claim in New York?

The statute of limitations varies between laws. Under both Section 215 and Section 740, an employee has two years from the date of the alleged retaliatory action to initiate a civil action in court. This deadline is strictly enforced. For claims which occurred on or after February 15, 2024, New Yorkers have three years to file discrimination claims under NYSHRL.

Employees pursuing claims under federal laws, including the FLSA or statutes enforced by the EEOC, face different and typically shorter deadlines depending on the specific law and forum involved.

Consulting with an attorney promptly after a retaliatory action is the most reliable way to preserve available legal options. Employees who delay reporting out of fear of retaliation risk losing the ability to file within the applicable limitations period.

What to Do If You Believe You’ve Experienced Workplace Retaliation

Employees who believe they have experienced retaliation should immediately document and preserve evidence: the date and nature of the original complaint, the supervisor or official to whom it was made, and any subsequent changes in employment conditions. Written records carry more evidentiary weight than recollection alone.

The administrative process of filing a retaliation complaint differs depending on the applicable statute(s). For example, some laws may only protect employees who report within a certain timeframe, to a certain authority, or who first proceed through their employer’s grievance process. Because filing a complaint may trigger deadlines which limit your options, it is highly advised to protect yourself: consult an attorney versed in both New York and federal employment law before taking action.

New York employee rights and responsibilities can differ significantly from those in other states. Consulting with an experienced New York employment lawyer can make all the difference. If you’re dealing with an unfair labor practice, facing discipline without proper representation, thinking about organizing your workplace, or have questions about your employee rights, Tully Rinckey’s team of dedicated employment attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

As a Partner at Tully Rinckey PLLC, Amanda focuses her practice on Federal and State Employment and Labor Law, handling discrimination claims, whistleblower and retaliation claims, retirement matters, and wage and pay claims amongst others. She also handles administrative complaints, investigation and litigation, as well as state litigation.