The Affordable Care Act (“ACA”) protects employees against retaliation for a broad range of activities. An employee engages in protected activity under the ACA when doing the following:
- Provides or causes, or is about to cause, to be provided to the employer, the federal government, or a state attorney general information relating to any act or omission the employee reasonably believes to be a violation of any ACA provision;
- Provides testimony, or is about to provide testimony, concerning an alleged ACA violation;
- Assists or participates in, or is about to assist or participate in, a proceeding regarding an ACA violation or any act or omission the employee reasonably believes to be an ACA violation;
- Objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee (or another person) reasonably believes to be in violation of the ACA; or
- Receives an ACA tax credit or cost-sharing reduction.
Generally, a claim for retaliation under the ACA is established if the employee can show that the protected activity was a contributing factor in the adverse employment action and the employer cannot demonstrate through clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity. It is not necessary for the employee to be correct in the belief that an ACA violation has occurred. All that is required is a reasonable belief by the employee that such a violation has occurred. To have a reasonable belief, the employee must show a subjective, good-faith belief and an objectively reasonable belief of the violation.
To pursue an ACA retaliation claim, an employee or attorney must file the complaint with the Department of Labor (“DOL”) within 180 days after the alleged violation. The employer must respond within 20 days of receiving the complaint and no extensions are permitted by the DOL.
Following the employer’s submission of a written statement in response, the DOL will issue its findings and conclusions within 60 days after the filing of the complaint. The DOL will share the employer’s response with the employee, but does not share the employee’s submissions with the employer.
If the employee can show that the employee’s protected activity was a contributing factor to the employer’s decision to impose termination or discipline, the employee has established a prima facie claim for retaliation. If the employer’s adverse action occurs shortly after the employee’s protected activity, an inference is raised that the protected event caused the adverse conduct.
Upon finding that the employer violated the ACA, the DOL can award the employee remedies including reinstatement, back pay, emotional distress damages, interest on the damages awarded, attorney fees, and costs. In some cases, we advise our client to withdraw their claim from the DOL, file in federal court and seek a larger award from a jury of their peers.