16.5 VI. Remedies: When And How Raised

• Jurisdiction: New York

VI. REMEDIES: WHEN AND HOW RAISED

Once a public employee has been the subject of an adverse personnel action, he or she may invoke the protection of the whistleblower statute in three ways. If the employee is subject to discipline under final and binding arbitration or other collectively negotiated agreement or under Civil Service Law § 75, he or she may assert as a defense before the designated arbitrator or hearing officer that discipline “would not have been taken but for the conduct protected” by the whistleblower statute.¹⁰⁰⁸ If the public servant is subject to a collectively negotiated agreement that prevents an employer from taking adverse personnel actions absent submission of any such disputes to final and binding arbitration, he or she may assert the same defense as a claim before the arbitrator.¹⁰⁰⁹ Failure to employ collective bargaining rights is fatal to a court action.¹⁰¹⁰

If a public employee is not subject to any applicable collectively negotiated binding arbitration provisions, he or she may commence a civil action in a court of competent jurisdiction under the same law that a private whistle blowing employee may employ.¹⁰¹¹ The employee must file the action “within one year after the alleged...