By:\u00a0 John E. Murray<\/p>\n
The Affordable Care Act (ACA) created a new retaliation claim for employees.\u00a0 An employee can bring a claim for retaliation if they have suffered some adverse employment action because:<\/p>\n
The Department of Labor\u2019s Occupational Safety and Health Administration (OSHA) has issued interim rules establishing the procedure for bringing these claims.\u00a0 First, employees must file a complaint with OSHA within 180 days of the alleged violation.\u00a0 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.<\/p>\n
Complaints are screened to determine if the employee has made a plausible argument that retaliation has occurred.\u00a0 If OSHA believes a violation may have occurred, it can issue a preliminary order reinstating the employee.\u00a0 Regardless of whether such an order is issued, employers typically will have 20 days to submit a position statement.\u00a0 Sixty days after filing that position statement, OSHA will issue its findings and conclusions.<\/p>\n
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.\u00a0 Within 30 days, either party can file objections or a request for a hearing.\u00a0 Reinstatement may be ordered even when objections have been filed.<\/p>\n
Hearings are held before an administrative law judge.\u00a0 At this hearing, the Complainant must prove that protected activity was a contributing factor in the challenged adverse employment decision.\u00a0 The protected activity can be one of several factors leading to the challenged employment decision.\u00a0 The employer then must prove, by clear and convincing evidence, that the same decision would have been made regardless of any protected activity.<\/p>\n
The ALJ will issue a written decision.\u00a0 This decision becomes final unless either party files objections with the Department of Labor\u2019s Administrative Review Board (ARB).\u00a0 Objections must be filed within 14 days.\u00a0 The ARB has the right to accept or reject the request for review.\u00a0 If the ARB does not accept the request for review, the parties can appeal the ALJ\u2019s decision to the relevant federal court of appeals.\u00a0 If the ARB reviews the decision, it must issue its own decision within 120 days after all briefs have been submitted.\u00a0 The parties then have 60 days to appeal the ARB\u2019s decision to the court of appeals.<\/p>\n
Employees also have the right to go into federal court any time before a final decision has been issued by the Department of Labor.\u00a0 Employees simply dismiss their administrative claim and pursue it in federal court.\u00a0 Retaliation claims will be tried to a jury.\u00a0 Employees can recover reinstatement, back pay, compensatory damages, attorney fees and costs.<\/p>\n
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.\u00a0 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.<\/p>\n
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.<\/p>\n
– See more at: http:\/\/www.lindner-marsack.com\/e-alerts\/new-interim-rules-for-affordable-care-act-retaliation-claims\/#sthash.lWN4no5K.dpuf<\/p>\n","protected":false},"excerpt":{"rendered":"
By:\u00a0 John E. Murray The Affordable Care Act (ACA) created a new retaliation claim for employees.\u00a0 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4,20],"tags":[],"class_list":["post-66","post","type-post","status-publish","format-standard","hentry","category-affordable-care-act","category-retaliation-claims"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p5WrIF-14","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/66","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/comments?post=66"}],"version-history":[{"count":2,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/66\/revisions"}],"predecessor-version":[{"id":122,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/66\/revisions\/122"}],"wp:attachment":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/media?parent=66"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/categories?post=66"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/tags?post=66"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}