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New Healthcare Legislation Brings FLSA Whistleblower Protections

By Allen B. Roberts, Douglas Weiner

While most attention in the legislative and political process leading to enactment of the Patient Protection and Affordable Care Act (“PPACA”) focused on the significant impact on the delivery of health care, employers need to be aware, also, of amendments to the Fair Labor Standards Act (“FLSA”). The FLSA amendments impose certain employer responsibilities in providing health care benefits, confer whistleblower protections and authorize the U.S. Department of Labor (“DOL”) to undertake increased enforcement related to health care.

While other features of the FLSA amendments are addressed in our client alert, “Health Care Reform Legislation Amends the Fair Labor Standards Act to Give the U.S. Department of Labor Increased Enforcement Authority over Health Care,” here is a summary of whistleblower protections:

  • A new Section 18C, “Protections For Employees”, is added to the Fair Labor Standards Act, prohibiting employers from taking adverse action against any employee because the employee:
     

    • received a premium tax credit or subsidy for a health plan;
    • provided information to the employer or the federal or state government concerning a violation, act or omission the employee reasonably believes to be a violation relating to Title I of the PPACA. (Title I of the PPACA, among other things, provides rules for the establishment and operation of the Exchange and imposes certain mandates on employers, including the provision of certain standards of benefits for health coverage, the automatic enrollment requirements described above and the elimination of certain restrictions in health coverage, such as pre-existing condition exclusions and lifetime and annual dollar limitations in coverage);
    • testified or is about to testify in a proceeding concerning such violation;
    • assisted or participated, or is about to assist or participate, in such a proceeding; or
    • objected to, or refused to perform any activity or assigned task the employee reasonably believes to be such a violation.
  • The new employee protections under the PPACA are significant in that they provide employees with the authority to challenge actions of employers in implementing the requirements of Title I of the PPACA.
  • Enforcement of these protections incorporates the procedures, notifications, burdens of proof, remedies and statute of limitations set forth in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), 15 U.S.C. 2087(b) [addressed in EpsteinBeckerGreen Client Alert, New Law Builds Employee Whistleblower Protections into Consumer Products]. The Department of Labor is likely to assign complaints under this section to the whistleblower investigations unit within OSHA, as are 17 other statutes, including CPSIA. Finally, these protections do not diminish any other rights under federal or state law or under a collective bargaining agreement and are not waivable.
  • This provision is effective immediately.

In an earlier article published in Financier Worldwide’s Litigation & Dispute Resolution 2010 Ebook (pdf), we observed that businesses and other organizations should anticipate change occasioned by increased enforcement initiatives by administrative agencies. In ways different from legislative and executive initiatives empowering governmental authorities, features of the PPACA may have the effect of enlisting employees to police compliance. Affected organizations should review policies and procedures to take account of these new legal and enforcement considerations.