Monthly Archives: March 2013


By:  John E. Murray

The Affordable Care Act (ACA) created a new retaliation claim for employees.  An employee can bring a claim for retaliation if they have suffered some adverse employment action because:

  • The employee receives a subsidy to purchase health insurance;
  • The employee provides information to an employer or a government agency regarding a real or perceived violation of the ACA;
  • The employee testifies in a proceeding regarding a violation of the ACA;
  • The employee assists or participates in an investigation of a possible violation of the ACA; or
  • The employee objects to or refuses to participate in any activity, policy, practice or assigned task which the employee reasonably believes to be a violation of the ACA.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim rules establishing the procedure for bringing these claims.  First, employees must file a complaint with OSHA within 180 days of the alleged violation.  OSHA will share the complaint with the IRS, the Treasury Department, the Department of Health and Human Services, and/or any other relevant branches of the Department of Labor.

Complaints are screened to determine if the employee has made a plausible argument that retaliation has occurred.  If OSHA believes a violation may have occurred, it can issue a preliminary order reinstating the employee.  Regardless of whether such an order is issued, employers typically will have 20 days to submit a position statement.  Sixty days after filing that position statement, OSHA will issue its findings and conclusions.

If OSHA determines a violation has occurred, it can order reinstatement, back pay, compensatory damages (for emotional distress), interest on the damages awarded, attorney fees and costs.  Within 30 days, either party can file objections or a request for a hearing.  Reinstatement may be ordered even when objections have been filed.

Hearings are held before an administrative law judge.  At this hearing, the Complainant must prove that protected activity was a contributing factor in the challenged adverse employment decision.  The protected activity can be one of several factors leading to the challenged employment decision.  The employer then must prove, by clear and convincing evidence, that the same decision would have been made regardless of any protected activity.

The ALJ will issue a written decision.  This decision becomes final unless either party files objections with the Department of Labor’s Administrative Review Board (ARB).  Objections must be filed within 14 days.  The ARB has the right to accept or reject the request for review.  If the ARB does not accept the request for review, the parties can appeal the ALJ’s decision to the relevant federal court of appeals.  If the ARB reviews the decision, it must issue its own decision within 120 days after all briefs have been submitted.  The parties then have 60 days to appeal the ARB’s decision to the court of appeals.

Employees also have the right to go into federal court any time before a final decision has been issued by the Department of Labor.  Employees simply dismiss their administrative claim and pursue it in federal court.  Retaliation claims will be tried to a jury.  Employees can recover reinstatement, back pay, compensatory damages, attorney fees and costs.

The retaliation provisions of the ACA create another avenue for current and former employees to challenge discharge, discipline, or any other employment decision with which they disagree.  Because of the relatively short timeframes associated with these claims, it is critical for employers to carefully document the reasons for any adverse employment decision which affects an employee who may be engaged in activity the ACA views as protected.

If you have questions about this article, or steps you can take to minimize exposure to these retaliation claims, please call John Murray at 414-226-4818, or call any other Lindner & Marsack attorney at 414-273-3910.

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By: John E. Murray

Last month the Department of Labor issued final regulations clarifying the right of eligible employees to take FMLA leave relating to military leave. These regulations take effect today. The relevant changes to the DOL’s prior regulations are:

  • FMLA leave is available for qualifying exigencies arising out of the active duty of the employee’s spouse, son, daughter, or parent, only when that active duty involves deployment to a foreign country.
  • Eligible employees may take leave to care for the parent of a military member if the parent is incapable of self – care and the care provided by the employee is necessary because of the military member’s active duty.
  • The amount of leave an employee may take to spend time with a military member on rest and recuperation leave has been expanded from 5 days to 15 days.
  • The spouse, son, daughter, parent, or next – of – kin of a military member, may take up to 26 work weeks of FMLA leave to care for a former service member who was discharged or released under conditions other than dishonorable discharge during the 5 years prior to the first day of leave.
  • The definition of serious injury or illness for a covered service member now includes conditions which existed prior to active duty which were aggravated in the course of active duty.
  • The list of healthcare providers authorized to complete a certification for service members has been expanded to include caregivers who are not affiliated with the Department of Defense, the Veterans’ Administration or TRICARE. Second and third opinions may be required for certifications provided by these healthcare providers.
  • Documentation of enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers can be sufficient certification if the employee also provides information about the military member’s familiar relationship to the employee, the military member’s discharge date and the military member’s status.

For employers who use the DOL’s forms, the Department has issued new forms for the leaves affected by these regulations. They are available from the DOL’s website. For employers who have developed their own forms, these changes will require modification only to the extent any of the current forms are inconsistent with the new regulations, or they fail to fullyadvise employees of their rights.

Finally, the Department of Labor has issued a new FMLA poster which incorporates the new regulations. You can view a copy of the poster by clicking: It also is available at
and local Wage and Hour District Offices.

If you have questions about whether your FML A forms require modification, please call John Murray at 414-226-4818, or call any other Lindner & Marsack attorney at 414-273-3910.