Many New York employees are afraid to speak out about possible wrongdoing in the workplace because they fear retaliation. But federal and state laws are in place to protect “whistleblowers” under certain circumstances. That said, it is a good idea to consult with a qualified New York employment attorney before speaking out, especially if you are unsure of the law in this area.
Medicaid Billing Fraud May Support Claim Against Hospital
Consider these two recent cases. In the first case, a mental health clinician alleged she lost her hospital job, in part, because she complained to her supervisor and union delegate about allegedly fraudulent billing practices. Specifically, she alleged that her boss told her to manipulate patient scheduling “in an effort to increase Medicaid reimbursement.” The plaintiff said this led her to schedule medically unnecessary treatment sessions with her patients. Following her complaints, she was disciplined and ultimately fired.
The plaintiff has sought relief in federal court under Section 740 of the New York State Human Rights Law, which states an employer cannot retaliate against an employee who “discloses or threatens to disclose” a practice that she “reasonably believes constitutes improper quality of patient care.” The hospital moved to dismiss this whistleblower claim, alleging that this was an issue of alleged “fraudulent billing,” which is not covered by Section 740. But the judge disagreed, noting that if the plaintiff can prove that “mental health treatment and therapy decisions [were] made on the basis of reimbursement rates,” that could constitute a “danger to public health and safety” under the NYSHRL.
Teacher's Complaints Not Protected “Speech”
The second case involves a public school teacher in Manhattan. In 2011, the plaintiff was responsible for setting up and administering a New York State Regents Examination. While grading the exams, the plaintiff “observed that approximately a dozen students in another teacher's class received perfect scores,” according to court records. The plaintiff suspected the other teacher had “improperly coached” his students. He brought his concerns to school officials, and later to the Board of Regents.
The plaintiff then said he was the target of retaliation by school officials, which included unsatisfactory performance reviews and a demotion. He sued the Board of Education and other parties, alleging the retaliation violated his First Amendment rights to free speech. But both the district judge and, more recently, the U.S. Second Circuit Court of Appeals rejected that argument.
As the Second Circuit explained, “Only certain types of speech made by government employees are protected by the First Amendment.” When “speaking as an employee–rather than as a citizen,” an employee's speech is not protected. In this case, the plaintiff's allegations against the teacher was clearly made within the scope of his employment. He therefore could not sustain a retaliation claim under the First Amendment.
Do You Have a Potential Whistleblower Claim?
The lesson from both of these cases is that whistleblower law is not simple or straightforward. Even if you think you are engaged in protected activity, it is best to consult with a qualified New York employment lawyer first. Contact the Law Offices of Mahir S. Nisar today to schedule a consultation so we can discuss your situation.