Wednesday, March 31, 2010
Today's Workplace has an interesting and important article about a little noticed part of Obama Care. It includes Whistleblower protection for health care workers. As the article states:
Section 1558: Health care worker whistleblower protections added to the Fair Labor Standards Act. Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill. The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill. Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies. Accordingly, Section 1558 will likely protect a broad range of disclosures.
The procedures, burden of proof, and remedies applicable to this new retaliation claim are set forth in the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including (1) a 180-day statute of limitations; (2) a requirement to initially file the complaint with OSHA, which will investigate the complaint and can order preliminary reinstatement; (3) the option to litigate the claim before the Department of Labor Office of Administrative Law Judges or to remove the claim to federal court 210 days after filing the complaint; (4) the right to try the claim in federal court before a jury; and (5) a broad range of remedies, including reinstatement, back pay, special damages, and attorney’s fees. Similar to Section 806 of the Sarbanes-Oxley Act, the causation standard and the burden-shifting framework are very favorable to employees.
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee engaging in protected conduct, an onerous burden.
Mitchell H. Rubinstein