On October 11, 2016, the Occupational Safety and Health Administration (OSHA) published a final rule (Rule) that establishes procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA); for hearings before US Department of Labor (DOL) administrative law judges in ACA retaliation cases; review of those decisions by the DOL Administrative Review Board; and judicial review of final decisions.

The ACA protects employees from retaliation for receiving Marketplace Exchange (Exchange) financial assistance when purchasing health insurance through an Exchange, or from getting their coverage through an employer. It also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms found in Title I of the ACA. In 2013, OSHA published an interim final rule and this Rule is substantially similar to the interim final rule.

Retaliation

Employees who believe they have been retaliated against in violation of Title I of the ACA may file a complaint with OSHA. Retaliation is broad and is not limited to the firing of an employee. Retaliation can include several types of actions, such as:

• Firing or laying off an employee

• Reducing pay or hours of an employee

• Blacklisting an employee

• Demoting an employee

• Denying overtime or promotion to an employee

• Disciplining an employee

• Denying the employee benefits

• Failing to hire or rehire the employee

• Intimidating an employee

• Making threats to an employee

• Reassigning affecting prospects for promotion of the employee

Time Limits for Filing Complaints

An employee, or representative of an employee, who believes that he or she has been retaliated against in violation of Title I of the ACA may file a complaint with OSHA. Complaints must be filed within 180 days after the retaliation.

Filing a Complaint

To file a written complaint

An employee can file an ACA whistleblower complaint with OSHA by visiting or calling the local OSHA office or by sending a written complaint to the closest OSHA office. No particular form is required and complaints may be submitted in any language. To find a local OSHA office the employee can call +1 800 321 OSHA (6742) or visit the OSHA website.

Written complaints may be filed by fax, electronic communication, hand delivery during business hours, US mail (confirmation services are recommended) or other third-party commercial carrier. The date of the postmark, fax, electronic communication, telephone call, hand delivery, delivery to a third-party commercial carrier or in-person filing at an OSHA office is considered the date the complaint is filed.

To file a complaint electronically

To file an electronic complaint, the employee should visit the whistleblower section of OSHA’s website.

Once a Complaint Is Received

Responsibility for receiving and investigating complaints under Section 18C of the Fair Labor Standards Act of 1938 (FLSA) has been delegated to OSHA’s assistant secretary. Upon receipt of the complaint, the US secretary of labor (the Secretary) must provide written notice to the person or persons named in the complaint alleged to have violated FLSA’s section 18C (respondent which will generally be the employer) of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, afford the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses and conduct an investigation.

Investigations

The Secretary may conduct an investigation only if the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint, and the respondent has not demonstrated, through clear and convincing evidence, that the employer would have taken the same adverse action in the absence of that activity. A prima facie case may be made through both a complaint and interviews with the complainant.

If after conducting an investigation, the Secretary finds that there is reasonable cause to believe that retaliation has occurred, the Secretary must notify the respondent of that finding, along with a preliminary order that requires the respondent to, where appropriate: Take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation of that position (including back pay) and restore the terms, conditions and privileges associated with his or her employment; and provide compensatory damages to the complainant, as well as all costs and expenses (including attorneys’ fees and expert witness fees) reasonably incurred by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 USC 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period (collectively referred to below as potential remedies).

Filing an Objection

The complainant and the respondent then have 30 days after the date of the Secretary’s notification to file objections to the findings and/or a preliminary order, and request a hearing before an administrative law judge of the DOL. The filing of objections is done under section 18C of the FLSA, and will stay any remedy in the preliminary order except for preliminary reinstatement of the employee. If a hearing before an administrative law judge of the DOL is not requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

Hearings

If a hearing before an administrative law judge is held, the statute requires the hearing to be conducted “expeditiously.” The Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief, or deny the complaint. However, until the Secretary’s final order is issued, the Secretary, the complainant and the respondent may enter into a settlement agreement that terminates the proceeding.

If the Secretary determines that a violation has occurred, the Secretary will order the respondent to, where appropriate, provide the complainant the potential remedies.

Within 60 days of the issuance of the final order, any person adversely affected or aggrieved by the Secretary’s final order may file an appeal with the US Court of Appeals for the circuit in which the violation occurred or the circuit where the complainant resided on the date of the violation.

The employee may seek de novo review of the complaint by a US District Court in the event that the Secretary has not issued a final decision within 210 days after the filing of the complaint or within 90 days after receiving a written determination. The court will have jurisdiction over the action without regard to the amount in controversy, and the case will be tried before a jury at the request of either party.

Employer Next Steps

Employers should review their employment policies and procedures and educate their work force to ensure they are not discriminating against employees under their employer provided coverage, or against employees for receiving Exchange financial assistance when purchasing health insurance through an Exchange. Employers also need to ensure that employees will not be retaliated against for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms found in Title I of the ACA. If a whistleblower allegation is made against an employer, an employer should take the response opportunity seriously and provide all applicable evidence to refute the allegations. The employer should consider all legal avenues available and pursue them timely and accordingly.