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Affordable Care Act Expands Whistleblower Protections for Employees

For many years, the Occupational Health and Safety Administration (OSHA) - a division of the U.S. Department of Labor - has provided protections to employees by establishing programs, policies and procedures aimed at creating safe and healthy working conditions for all U.S. workers.

OSHA regulations also address whistleblower protections. If a worker files a complaint - blows the whistle - or brings to light a safety issue or health code violation, his or her employer is prohibited from retaliating against that employee.

Starting in 2014, employees in Michigan and across the nation will have additional protections when they blow the whistle for employer violations of provisions under Title I of the Affordable Care Act.

Affordable Care Act Protections

The Affordable Care Act (ACA) - formally referred to as the Patient Protection and Affordable Care Act - was signed into law in 2010 by President Obama. The goal of the ACA is to reform the U.S. healthcare system.

Title I of the ACA deals with providing quality healthcare coverage for all Americans through such means as premium cost reduction for individuals and tax breaks for employers. Unfortunately, some employers violate ACA rules either inadvertently or in an effort to cut costs illegally.

What do the Affordable Care Act whistleblower provisions protect?

The anti-retaliation/whistleblower protections in the ACA protect not only whistleblowers that come forward with compliance concerns but also employees who are victims of employer actions meant to evade the ACA, such as an employer cutting hours simply to avoid paying the additional tax imposed for workers that don't get health care coverage.

Who does the Affordable Care Act cover?

The ACA applies to employers with an average of 50 or more "full time equivalent" employees. The IRS counts employees working 30 hours per week or more as full time equivalent and those working at least 15 hours as half an FTE. However, the protection from retaliation extends to all employers. Employers that are otherwise too small to be required to provide insurance are still prohibited from firing or otherwise retaliating against an employee based on protected activity. Cutting hours to below 30 is one indicator that an employer may be taking actions to evade the ACA requirements.

How does an employee know if he or she may be the victim of retaliation due to attempts to evade ACA liability?

Employees most commonly face a cut in hours or outright termination in an attempt to evade the law. Some employers are so upset about the law that they are virtually bragging that the ACA was the reason they cut hours or laid off employees in an effort to justify repeal efforts. These types of direct statements are the clearest evidence of retaliation. Other employers may be more subtle about their motives. In those cases, employment law depends on circumstantial evidence and inferences to determine the motive.

What should I do if I believe I have been a victim of retaliation prohibited by the Affordable Care Act?

First, seek the advice of an employment attorney. The anti-retaliation and whistleblower provisions are enforced by OSHA. There is a strict 180 deadline to file a complaint with OSHA.

Directorate of the Whistleblower Protection Program (DWPP) U.S. Dept. of Labor, OSHA 200 Constitution Avenue, NW, Rm N-4624 Washington, DC 20210

(202) 693-2199

Call OSHA Toll Free: 1-800-321-OSHA (6742)

Retaliation Against Employees


Employers may retaliate against their employees in a variety of ways. Acts of retaliation may include such actions as:

  • Demotion or reassignment to a less desirable position
  • Denial of overtime, benefits or promotion
  • Harassment, intimidation or threatening behavior
  • Reduction in pay or hours
  • Wrongful discharge or termination

If an employee believes he or she is the subject of retaliatory action by an employer, OSHA provides a formal complaint procedure. A complaint must be filed within 180 days of the alleged violation, at which point OSHA officials would then investigate the allegations. If a decision is rendered in favor of the employee, OSHA may require the employer to take action to correct and compensate for the violation.

You don't have to do this alone. The IRS has a website explaining the rules (http://www.irs.gov/uac/Newsroom/Questions-and-Answers-on-Employer-Shared-Responsibility-Provisions-Under-the-Affordable-Care-Act). If you or someone you know suffers from retaliation in the workplace, consult an experienced employment law attorney to discuss the legal options.

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