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PPACA creates new class of whistleblower retaliation claims

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The Patient Protection and Affordable Care Act (PPACA) has caught the attention of the lawyers who help file — and defend organizations against — whistleblower claims.

Section 1558 of PPACA added Section 18C to the federal Fair Labor Standards Act (FLSA). FLSA Section 18C protects any employee who reports an alleged violation of PPACA to the employer, the government, or a state attorney general; who receives a health insurance tax credit; or who refuses to participate in an activity that violates PPACA.

The provision applies to all employees, former employees and job applicants.

Plaintiffs who win FLSA Section 18C cases could get remedies that include reinstatement, back pay, restoration of benefits — and attorneys’ fees and costs.

A group of lawyers that included Linda Gadsby of Scholastic, Linda Headley of Littler, Karen McWilliams of E*Trade Financial, and Kari Potts of Valmont Industries put a discussion of the PPACA retaliation provision in a slide deck from a recent employment law seminar.

A plaintiff has 18 days to file a claim with the Occupational Safety & Health Administration (OSHA). The process for filing a PPACA retaliation claim appears to be similar to the process for filing a Sarbanes-Oxley retaliation claim, Gadsby and her colleagues said.

The lawyers suggested that employers might reduce the risk of retaliation claims of all kinds by providing training for managers at all levels, exercising extra caution with employees who might use whistleblowing as an offensive strategy, documenting employee evaluations fully and accurately, and providing honest, timely performance reviews.


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