NY Whistleblower Law Does Not Protect Employee Fired For Refusing to Engage in Perjury

A recent decision, Thiebault v.Chelsea 23rd St. Corp., 108001/2011 (N.Y. Sup. (N.Y. Cty.) Feb. 3, 2012), illustrates (yet again) the limited reach of New York’s general whistleblower statute.  Plaintiff alleged that he was terminated because he refused to sign an affidavit of service containing false statements, in violation of that law.  The court disagreed.

“In New York, where the terms of employment are indefinite, and no contract or agreement states otherwise, employment is at will and ‘may be freely terminated by either party at any time for any reason or even for no reason.'”  One exception to this rule is set out in Labor Law § 740(2)(c) – upon which plaintiff relied – which “creat[es] a cause of action for employees who were discharged because they refused to violate a law, rule or regulation, the violation of which poses a ‘substantial and specific danger to the public health and safety.'” (Emphasis added.)

Here, plaintiff failed to meet the last requirement:  “[B]ecause Thiebault did not allege in his complaint that committing perjury by signing a falsified affidavit would have created a danger to the public safety, he failed to state a cause of action under the Labor Law. … In any event, allegedly requiring an employee to falsely admit or deny facts relating to service of process in a private litigation does not pose a sufficient danger to the public to trigger § 740.”

Hence, the court dismissed plaintiff’s complaint.

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