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Obamacare: does it hide a potent whistleblower pill?

By Mario Barrera (US) & James Hughes on May 29, 2014
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The Affordable Care Act (ACA)—or “Obamacare”—has gotten plenty of attention due to technical glitches with the HealthCare.gov website, consumers’ difficulties obtaining (or keeping) insurance through the exchanges, and Health Secretary Sibelius’s recent resignation.

But some notable provisions of the ACA have gone largely unremarked—particularly an amendment to Title 29 of the U.S. Code.

Added by the ACA, § 218c of Title 29 not only protects employees who receive ACA healthcare credits or subsidies, it also shields employees who:

  1. report violations of “this title”;
  2. testify, assist, or participate in a related proceeding; or
  3. object to or refuse to participate in violations of “this title.”

What exactly does § 218c mean when it says “this title”?

One answer is Title I of the ACA, which prohibits various limits on health insurance coverage, and establishes mandatory coverage for preventative services, immunizations, and dependents.

Alternatively, it could be argued that by its plain language, § 218c protects employees who disclose any violation within the entirety of Title 29 because that is the “Title” in which § 218c appears. See 29 U.S.C. § 218c(a)(2).

If § 218c’s “this title” covers everything in Title 29, what does that mean? 

Arguably, the ACA’s whistleblower provision covers numerous federal labor laws—like the FLSA, ERISA, FMLA, ADEA, and OSHA—all of which are codified under Title 29. In fact, the ACA recites that it is amending the FLSA. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1558, 124 Stat. 119, 261 (2010).

What happens if the ACA’s whistleblower provision covers these federal labor laws?

As one court considering this question put it, “if Congress meant ‘this title’ to refer to Title 29, it worked a momentous change in labor law with no one seeming to notice.” Rosenfield v. Globaltranz Enters., Inc., No. CV 11-02327-PHX-NVW, 2012 WL 2572984, at *3 (D. Ariz.. July 2, 2012).

This is because, while all these acts—FLSA, ERISA, FMLA, ADEA and OSHA—have built-in anti-retaliation provisions, the employee protections they provide are typically narrower than that of § 218c. Id. (noting that “objects to” under § 218c “is much less formal” than the FLSA’s own provision, which only protects employees who “‘file[] any complaint’”) (comparing 29 U.S.C. § 218(c)(a)(5) with 29 U.S.C. § 215(a)(3)).

Consequently, Rosenfield concluded § 218c only applies to Title I of the ACA itself. Id.

The courts are mixed: § 218c’s application is unclear

And yet, several other district courts have assumed § 218c does apply to Title 29 generally, or at least to the FLSA. See Wiley v. Asplundh Tree Expert Co., No. 2:13-CV-02952, 2014 WL 1017208, at *8 (S.D. W. Va. Mar. 17, 2014); Falk v. City of Glendale, No. 12-CV-00925-JLK, 2012 WL 2390556, at *5 n.11 (D. Colo. June 25, 2012); Jean-Louis v. Metro. Cable Commc’ns, Inc., 838 F. Supp. 2d 111, 120 n.5 (S.D.N.Y. 2011).

On the other hand, a few treatises and periodicals—and even Westlaw itself—have concluded “this title” refers only to the ACA’s Title I and not to Title 29. E.g., 70 False Cl. Act and Qui Tam Q. Rev. NL 8,  n.77 (July 1, 2013-Sept. 30, 2013) (“The phrase ‘this title,’ means Title I of the []ACA, not Title 29 of the United States Code.”); 10ACanan & Mitchell, Employee Fringe & Welfare Benefit Plans § 10A:19 (2014 ed.); 29 U.S.C.A. § 218c note (“This title, referred to in subsec. (a)(2), (5), means Title I of the Patient Protection and Affordable Care Act . . . .”).

To date, the issue remains unconsidered by the overwhelming majority of courts, including any federal court of appeals.

Mario Barrera (US)

Mario Barrera has over 20 years’ experience handling first chair cases and trying those cases to verdict.

As a labor and employment partner in Norton Rose Fulbright’s San Antonio office, Mario has been involved in individual and class/collective actions.

Read more about Mario Barrera (US)Email
Photo of James Hughes James Hughes

James Hughes joined the Austin office in November 2013 as an associate in the employment and labor group.

Prior to joining Norton Rose Fulbright, James served two judicial clerkships at both the trial and appellate levels. From 2011–2013, he was a federal judicial…

James Hughes joined the Austin office in November 2013 as an associate in the employment and labor group.

Prior to joining Norton Rose Fulbright, James served two judicial clerkships at both the trial and appellate levels. From 2011–2013, he was a federal judicial clerk for Judge Sam Sparks of the US District Court, Western District of Texas.

From 2010–2011, he served as a judicial clerk for Justice Eva M. Guzman of the Texas Supreme Court. During both clerkships, James worked on numerous cases involving both federal and state employment law. These included various federal cases under Title VII, the ADA, the ADEA, the FLSA, and the FMLA.

He also has familiarity with cases involving state law, such as non-compete agreements and employment contracts.

Finally, James has extensive experience with federal motions practice and federal employment trials.

Read more about James HughesEmail
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  • Posted in:
    Employment & Labor, Featured Posts, International
  • Blog:
    Global Workplace Insider
  • Organization:
    Norton Rose Fulbright
  • Article: View Original Source

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