This could get very ugly for employers. Disgruntled employees can issue protected whistleblower claims against employers, even in error, and receive federal protection. In reality, however, those claims
never need to be in error. Obamacare and its resulting regulatory framework are so complex I can assure you that
every employer has a violation someplace. This survey found that the most capable employers with the most resources admit that they are not confident with their compliance.
This is from a recent
ADP survey:
While the majority of large employers (70%) handle ACA compliance internally, the study revealed that these employers do not feel fully prepared to manage several critical compliance requirements, including Exchange notices (62%), ACA penalties (60%) and annual health care reporting (IRS Forms 1094/1095-C) (49%). ...
And this is from
Mary Pivec & Igor Babichenko of Williams Mullen:
An employer need not commit an actual violation of the ACA to be subject to a whistleblower claim. The ACA’s whistleblower provision provides protection for employees who merely voice a concern about a possible violation. Specifically, the ACA’s whistleblower provision prohibits retaliation against any employee who provides information relating to any act that he or she reasonably believes to be a violation of the ACA. Under this “reasonable belief” standard, the employee need only show that he or she believed that the employer’s conduct violated the ACA and not that the employer actually violated the law. Thus, an employer who is in full compliance with the substantive provisions of the ACA still may run afoul of the whistleblower provision....
The ACA’s whistleblower provision provides an incentive for employees to report employer violations—both willful and inadvertent—of the ACA. Accordingly, employers must be vigilant in familiarizing themselves with the ACA’s whistleblower rules so as not to fall into a whistleblower trap. Understanding the regulations and maintaining vigorous compliance programs are the keys to avoiding and defeating whistleblower claims. As with any law that provides whistleblower protection, employers must be careful to ensure that, if and when a possible ACA violation is reported, no adverse actions are taken against the whistleblowing employee without a legitimate, non-retaliatory, and non-discriminatory reason for the decision.
What kind of whistleblowing protections are available to employees?
PPACA:
authorizes the Secretary of Labor to conduct investigations into retaliation complaints and issue determinations, and the Rule delegates that duty to OSHA. Retaliating employers can be required to, among other things, reinstate terminated employees, provide back pay with interest, and pay compensatory damages, attorneys’ fees, and expert witness fees.
