For years, retaliation claims have been the bane of many employers’ existence. Under Title VII, these claims have risen 72 percent from 22,278 charges filed with the Equal Employment Opportunity Commission (EEOC) in 2005 to 38,539 charges in 2013. While many employers are aware of EEOC retaliation investigations, less are likely to be aware that the Occupational Safety & Health Administration (OSHA), as part of the United States Department of Labor (DOL), is also tasked with investigating and enforcing the whistleblower provisions of more than 20 federal statutes. This includes the politically charged Patient Protection and Affordable Care Act (ACA) passed by Congress in 2010 and now commonly referred to as “ObamaCare.”

Although the number of complaints investigated by OSHA pales in comparison to those investigated by the EEOC, the numbers are clearly on the rise. In 2005, 1,934 whistleblower complaints were filed with OSHA. By 2014, that number had grown to 3,060; close to a 60 percent increase. In February, the Obama administration released its proposed 2015 budget seeking a 10 percent increase in the DOL’s budget — some of which will likely go to enforcing whistleblower laws. It is also worth noting that in 2014, OSHA was seeking to add 47 new positions to investigate whistleblower claims before its budget was finalized.

Although most employers are aware that the ACA may dramatically affect the way they provide health insurance benefits to their employees, few may recognize that the ACA also establishes whistleblower protections for employees who voice concern or complain about their employer’s reaction to the ACA. Section 1588 of the ACA created 29 U.S.C. § 218c which provides that no employer shall discharge or discriminate against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment, because the employee has engaged in activity protected by the ACA.

The list of protected activity under the ACA is not limited and Congress intended that the statute be broadly interpreted to encompass many activities. Such protected activities include:

• providing information related to an actual ACA violation to the employer or government agency
• providing information relating to any act or omission the employee reasonably believes to be a violation of the ACA to the employer or government agency
• assisting an employer or governmental agency in the investigation of an actual or purported violation of the ACA
• providing testimony concerning an actual or purported violation of the ACA
• refusing to participate in or objecting to any policy or procedure that the employee reasonably believes to be in violation of the ACA
• receiving a tax credit under Section 36B of the Internal Revenue Code of 1986 or a tax subsidy under section 1402 of the ACA

The law protects employees or potential employees from an adverse employment action because of their protected activities. Examples of adverse employment actions that an employee, or potential employee, may claim caused them harm include, but are not limited to, termination, failing to hire, demotion, blacklisting, failing to promote, intimidation or harassment, disciplining, a reduction in pay or hours, the denial of overtime pay, and/or the reassignment of work responsibilities or duties.

As we know, the passage and implementation of the ACA was met with a great deal of political controversy from members of both political parties as well as confusion on the part of the public as to what the ACA meant for them. This controversy and confusion are, for employers, likely to lead to a growing number of whistleblower claims.

On one hand, many employers are likely confused as to their obligations under the ACA and may implement policies, practices or procedures in an effort to comply with the ACA’s mandates which, in fact, violate the ACA or which an employee believes violates the ACA. Based on their confusion or misguided understanding, those same employers may unwittingly create a whistleblower claim after reacting to that employee’s complaints.

On the other hand, the political objections to the ACA have been so significant that it would not be surprising to find some employers, vehemently opposed to the ACA, trying to stretch the boundaries of the requirements of the law. In doing so, they may enact policies or procedures that employees believe violate the ACA and lead them to file complaints about their employer’s activities – acts which could prompt those same employers to respond with an adverse employment action. Further, some employees may, due to their own personal politics, be so motivated to see the ACA succeed that they may regularly and loudly voice complaints about even the slightest perceived violation, which again may lead their employers to take action in violation of the ACA’s whistleblower protections.

“The cost of litigating and defending complaints being investigated by multiple governmental agencies… could be significant and have an impact on employers and their insurers.”

— Kevin M. Fisher, Assistant Vice President, employment practices and governmental claims, Allied World

Plaintiff’s attorneys may also find ACA retaliation claims more appealing when compared to traditional Title VII claims, as recent United Supreme Court rulings have made those traditional claims more difficult to prove. In 2013, the U.S. Supreme Court issued its decision in Univ. of Texas Southwestern Medical Center v. Nassar, finding that in Title VII cases, plaintiffs must show that the causal link between their injury and the wrongful act is so close that the injury would not have occurred “but for” the act. This standard, theoretically, should make it much more difficult for plaintiffs to prove their Title VII retaliation claims.

The ACA, however, carries a very different, and much lower, burden on plaintiffs while also imposing a higher burden on employers to rebut the employee’s claims. Known as a “contributing factor” statute, the ACA provides that if an employee shows by a preponderance of the evidence that their protected activity was only a contributing factor in the employer’s adverse employment action, and the employer cannot show by clear and convincing evidence that they would have acted in the same way absent the protected activity, the employee should prevail. This lower burden may make ACA whistleblower claims much more attractive to plaintiff’s attorneys.

Employees who are successful in their complaints will be entitled to reinstatement as well as the recovery of front pay, back pay, compensatory damages for emotional distress, and interest. As with many employment law statutes, employees will also be able to recover their attorneys’ fees.

While there will likely be liability exposure in some of these claims, there will be the potential for large defense costs exposure on all of them. It would not be surprising to see plaintiffs file ACA whistleblower claims with OSHA while they also, and separately, file traditional retaliation or discrimination claims with the EEOC or claims under the Fair Labor Standards Act with the DOL. The cost of litigating and defending complaints being investigated by multiple governmental agencies and then, potentially, being litigated in federal court could be significant and have an impact on employers and their insurers.

While there has been no dramatic increase in the number of ACA whistleblower complaints to date, we are likely to see many more in the years to come as more and more employers become subject to the ACA’s coverage mandates. The impact to employers and insurers based on the liability and defense cost exposures of these claims will need to be considered by the broker and underwriting communities as we move forward.

Kevin M. Fisher is an assistant vice president employment practices and governmental claims with Allied World. The opinions expressed in this article belong solely to Mr. Fisher and are not necessarily shared by Allied World. Visit alliedworldinsurance.com for more information.

This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Allied World. The editorial staff of Risk & Insurance had no role in its preparation.