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Friday, November 22, 2013

The Affordable Care Act and whistleblower protections

Legal whistleblower protections are aimed at industry violations
Legal designation is required for whistleblowers
By Theda K. Rogers

There has been much discussion over recent news cycles about whistleblowing and legal protections afforded to those with enough intestinal fortitude to actually make hidden information known to the government. It is important to understand that whistleblower protections vary across employment categories.

In many ways, whistleblower protections are a one-way street. If an individual is reporting private sector fraud to the government, then protections may be provided. If the employer is the government, and reporting is made to another government agency, then the executive branch has the authority to classify the information and prosecute the whistleblower for a breach of national security.

Classification overreach is a standard policy for the current executive administration, so whistleblowing against the public sector is much different than whistleblowing against a private sector entity.

Legal standing for a "Qui Tam" claim

The problem for the informant employee is that the actual whistleblower must be duly designated by the federal legal system in a closed hearing in order to establish legal standing to file suit. An addendum to the problem is that the legal system is highly reluctant to issue the whistleblower status ruling, along with having a long investigation window for determining validity of the employee's claim.

The employee can be left with no legal recourse if OSHA rules in favor of the employer and appeals appear to be futile actions because the employee is not granted protection and standing to sue.

Whistleblowing under the Affordable Care Act

Section 1558 of the Affordable Care Act states that employers cannot retaliate against an employee for filing a complaint with the Occupational Safety and Health Administration. The law specifically lists employer actions that are deemed as retaliatory. In general, the items revolve around termination and denied promotion, but can extend to other menial areas of employment. OSHA then conducts an investigation into the matter, but they have 210 days to issue a ruling after the initial filing date. The employee, then has 90 days to appeal an unfavorable OSHA ruling before the ruling becomes final.

Whistleblowing and the "At Will" employment model

Employment conditions in the United States are relatively simple. Employees work for an employer at the will of the employer.  An experienced whistleblower law firm like Goldberg Kohn would probably tell you that there are a myriad of reasons an employer can make a decision to terminate an employee, unless the employment relationship is controlled by a collective bargaining agreement or personal employment contract.

Even in a personal employment contract, whistleblowing can still be deemed by the employer as a breach of contract. And, even in a collective bargaining agreement, unless an act is specifically stated in the agreement, the "at will" system applies to all other employer actions. There are numerous valid reasons an employer can use to terminate any employee, so the retaliation protections in the law are weak at best.

Employers may use tactics to deter informants

There are no provisions in the Affordable Care Act whistleblowing act that impede the employer from terminating the employee. The employer can fire the whistleblower immediately and dare them to sue after an investigation is completed.

Employers will know quickly if they are being investigated and will ferret out the informant immediately. The ACA accepts informal complaints, so information can leak, and the whistleblower protection is merely a qualified avenue of legal recourse that takes over six months for finalization through a snail-paced bureaucracy before the case is ripe for presentation to the federal court system, which is also infamous for slow movement.

Just because protections are codified does not mean that the informant employee can sustain the damage inflicted by the employer before a case can be adjudicated. And, if the termination leaves the employee non-compliant with the law because of a lack of resources, it can impact the remainder of the employee's life.

It is clear that many questions still loom over the complete implementation of the Affordable Care Act. Employees who consider blowing the whistle on their employer need to thoroughly investigate their options and possible outcomes with the help of an attorney.


About the author: Theda K. Rogers is a freelance copywriter. She was a law student for almost one year, and she worked as a legal assistant for some time. Even though she’s not directly involved in law right now, Theda has never lost her love of all things legal. In her never-ending quest for information, she learned about whistleblowing and how attorneys can help whistleblowers by researching sites like Goldberg Kohn and others online.

Image license: Steven Depolo, CC BY 2.0