OSHA Issues New Whistleblower Guidelines

by Barley Snyder
Contact

The Occupational Safety and Health Administration (OSHA) has issued a final rule on the procedures, processes, and timeframes for handling whistleblower complaints under the Affordable Care Act (ACA), as well as for hearings before U.S. Department of Labor (DOL) administrative law judges and judicial review of final decisions. The rule became effective October 13, 2016.

The ACA protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protection and health insurance reforms found in the ACA, as well as from retaliation for receiving marketplace exchange financial assistance when purchasing health insurance through an exchange, or from getting their coverage through an employer.

Employees who believe that they may have suffered retaliation may file a complaint with OSHA. OSHA has provided a list of those actions which may constitute retaliation, which includes discharge, reduction in pay or hours, demotion, transfer, discipline, threats, or intimidation. An employee who believes that he or she has been retaliated against in violation of the ACA must file a complaint with OSHA within 180 days of the alleged retaliation. Complaints may be filed in person, by fax, or electronically.

Upon receipt of the complaint, the Secretary of Labor must provide written notice to the person or persons named in the complaint (the employer), the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. The Secretary must then, within 60 days of receipt of the complaint, conduct an investigation that allows the complainant and employer an opportunity to submit a response and meet with the investigator to present statements from witnesses.

If after conducting an investigation the Secretary finds that there is reasonable cause to believe that retaliation has occurred, the Secretary will notify the employer and issue a preliminary order that may require the employer to abate the violation, reinstate the complainant with back pay and provide compensatory damages to the complainant, as well as all costs and expenses (including attorneys’ fees and expert witness fees) reasonably incurred by the complainant in connection with filing the complaint.

The complainant and the employer then have 30 days after the date of the Secretary’s notification to file objections to the findings or preliminary order and request a hearing before a DOL administrative law judge. The filing of objections will stay any remedy in the preliminary order, except for preliminary reinstatement of the employee. Unless a hearing before an administrative law judge is requested within 30 days, the preliminary order becomes final and is not subject to judicial review.

If a hearing before an administrative law judge is held, the Secretary then has 120 days after the conclusion of any hearing in which to issue a final order, which may provide appropriate relief or deny the complaint. Finally, within 60 days of the issuance of the final order, any person adversely affected by the Secretary’s final order may file an appeal with the U.S. Court of Appeals for the circuit in which the violation occurred.

In light of this new rule, employers would be wise to review their employment policies and procedures and train their supervisors and management to ensure they are not discriminating against employees in violation of the ACA and are not subjecting them to unlawful retaliation for raising concerns regarding conduct that they believe violates the ACA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barley Snyder | Attorney Advertising

Written by:

Barley Snyder
Contact
more
less

Barley Snyder on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.