Whistleblowing as a Private Right of Action in New York?

The venerable New York Whistleblower Protection Act has long allowed employees to report misconduct by their employer, at which point the public interest could be vindicated by the state Attorney General. But does an employee have a right to bring a personal claim under New York’s whistleblower law against alleged wrongdoers? The answer now appears to be yes.”

This past Friday, Justice Loren Bailey-Schiffman rejected arguments by defendants in a whistleblower case that the Attorney General and the Board of Directors of a non-profit school have the ability to file suit under the Nonprofit Revitalization Act of 2013, which requires employers to enact policies to protect whistleblowers from retaliation. Instead, she ruled the whistleblower herself has a private right of action against the school and its Headmaster.

Plaintiff Lisa Della Pietra worked at the Poly Prep Country Day School since 2003, where she herself was an alumna. In 2013, she learned that the school’s Director of Development took a trip to Cuba with alumni and at least two students. The trip involved heavy alcohol use and money spent on prostitutes. (One wonders if that had to do with the educational” nature of the trip.)

When Della Pietra informed the school’s Headmaster, David Harman, of the impropriety, he allegedly harassed and intimidated her, and she was eventually fired. Della Pietra sued both the school and Harman for emotional damages, alleging, among other things, that the Nonprofit Revitalization Act’s anti-retaliation provisions required that the school and Harman maintain whistleblower protection policies, which they did not.

But the Act does not expressly allow a private individual like Della Pietra to sue personally for emotional damages, as counsel for the defendants argued. Justice Bailey-Schiffman acknowledged that the Act does not expressly authorize a private right of action against institutions like the school and people like Harman—but went on to rule that the Act creates an implied right of action in favor of whistleblower plaintiffs.

Bailey-Schiffman followed an established three-part test under New York law in fashioning her ruling: if 1) the plaintiff was in the class of people the law was intended to benefit, 2) recognizing a private right of action would further the intent of the law, and 3) creation of a private right of action is consistent with the overall scheme of the statute, then it can be assumed that the legislature intended to create a private right of action.

Here, a clear legislative purpose behind the New York Legislature’s creation of the whistleblower protection law was to protect the Della Pietras of the world from retaliation. And the whole point of that legislative purpose was to benefit people exactly like Della Pietra. Therefore, the judge held, she could sue personally for emotional damages resulting from the alleged violation of the whistleblower protection law by both the prep school and its Headmaster.

The case is Pietra v. Poly Prep Country Day School, Index No. 506586/2015 (Sup. Ct. NY, Kings County, decided October 1, 2016). This ruling is a very significant expansion of whistleblower protection law in New York: a new avenue to sue an employer now exists where, prior to the ruling, it did not. Employers should be aware of this change in the law, should institute strong anti-retaliation policies, and should watch for additional cases alleging this theory of employment-related damages.