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Editor: Mitchell H. Rubinstein
New York Law School

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Monday, January 14, 2008

2d Certifies Two Whistleblower Questions to NY Court of Appeals

2dcirseal In Reddington v. Staten Island University Hospital, ___F.3d___(2d Cir. Dec. 14, 2007), the 2d Circuit was presented with two uncertain issues under New York law. The role of a circuit court is to interpret the law as the highest court in the state would. Where there is no controling authority, the 2d Circuit can ask the New York Court of Appeals to decide the issue and they usually do. This particular case concerned an individual who held various titles, but basically served as a translator. Significantly, he did not render patient care.

New York has a general whistleblower statute (Labor Law Sec. 740) and a whistleblower statute applicable to individuals performing patient care services. (Labor Law Sec. 741). The issues to be decided are as follows:

(1)Does the institution of a time-barred claim pursuant to New York Labor

Law § 740 simultaneously with a claim pursuant to New York Labor Law § 741 trigger section 740(7)’s waiver provision and thereby bar the section 741 claim, even if the section 740 claim is subsequently withdrawn?

(2) Does the definition of employee in New York Labor Law § 741 encompass an individual who does not render medical treatment, and under what circumstances?

This will be an important decision to watch.

Mitchell H. Rubinstein

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