I. INTRODUCTION
Among the new requirements for employers under the Patient Protection and Affordable Care Act of 2010 (PPACA) is a new “whistleblower” protection amendment to the Fair Labor Standards Act (FLSA).
The U.S. Department of Labor issued interim final regulations governing the employee whistleblower protection of section 1558 of the PPACA, which added section 18C to the FLSA. The interim final regulations establish procedures and timeframes for the handling of retaliation complaints under section 18C, including procedures and timeframes for submitting employee complaints to the Occupational Safety and Health Administration (OSHA), investigation of complaints, and appeals.
Under section 18C, an employer may not retaliate against an employee for receiving subsidized coverage under a qualified health plan through an insurance exchange. Certain “large” employers who fail to offer affordable coverage that provides “minimum value” may be assessed a tax penalty if any of their full-time employees receive a subsidy for coverage obtained through the exchange. This creates an incentive for an employer to retaliate against an employee, and Section 18C is designed to protect employees against such retaliation.
II. EMPLOYEE RETALIATION PROTECTIONS
Section 18C protects an employee from retaliation for providing information or participating in proceedings regarding any conduct the employee reasonably believes violates Title I of the PPACA. Specifically, retaliation is prohibited for:
(i) providing information to their employer, the federal government, or the attorney general of a State relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, title I of the PPACA (such as prohibitions on annual and lifetime limitations and coverage of preventive services);
(ii) testifying or being about to testify in a proceeding concerning such violation;
(iii) assisting or participating, or being about to assist or participate, in such a proceeding; or
(iv) objecting to, or refusing to participate in, any activity, policy, practice, or assigned task that the employee reasonably believes to be in violation of any provision of title I of the Act, including any of its implementing rules or guidance.
The procedures under the Consumer Product Safety Improvement Act of 2008 (CPSIA) apply to address complaints by employees about retaliation under section 18C. Key procedural requirements include:
Nothing in section 18C shall be deemed to diminish the rights, privileges, or remedies of any employee under any federal or state law or under any collective bargaining agreement, and the rights and remedies in section 18C may not be waived by any agreement, policy, form, or condition of employment. As a result, an employee may still bring claims under other laws and regulations protecting the employee from retaliation, including for example, section 510 of ERISA.
III. CONCLUSION
Employers need to be prepared to respond to employees’ section 18C complaints and should be in a position to demonstrate through “clear and convincing” evidence that they would have taken the same adverse action in the absence of the employee’s asserted PPACA protected activity.