Monday, August 12, 2013

It Is Illegal To Punish Workers For Qualifying For Health Care Assistance



On July 24, 2013, the Washington Post ran a story on page A1 called, “Health-care law is tied to new caps on work hours for part-timers.” Reporter Sandhya Somashekhar detailed how part-time workers are facing reductions in their hours as their employers plan to evade their tax liabilities for failing to provide health insurance as required under the Affordable Care Act (ACA).

That same day, I sent an email to Sandhya Somashekhar citing the section of the ACA that makes such adverse actions against employees unlawful.  Section 1558 of the ACA prohibits employers from discriminating against any employee because that employee “received a credit” or “a subsidy” under the ACA.  You can find the text of this section at http://www.whistleblowers.gov/acts/aca.html.  It is also well recognized under whistleblower law that employers cannot retaliate against an employee in anticipation of their future protected activity.  Thus, just because an employee may become eligible for a credit or subsidy under the ACA is not legal justification to cut that worker's hours now.

On February 27, 2013, OSHA issued interim final rules for handling whistleblower complaints under Section 1558 of the Affordable Care Act.  See 29 CFR Part 1984; 78 FR 13222. The regulations can be found here.  OSHAŹ¼s background statement contains a helpful description of the new employee protection:

[T]he Affordable Care Act’s section 1558 amended the Fair Labor Standards Act (FLSA) to add section 18C, 29 U.S.C. 218C (section 18C), which provides protection to employees against retaliation by an employer for engaging in certain protected activities.

Under section 18C, an employer may not retaliate against an employee for receiving a credit under section 36B of the Internal Revenue Code of 1986 or a cost-sharing reduction (referred to as a ‘‘subsidy’’ in section 18C) under section 1402 of [the] Affordable Care Act. These provisions allow employees to receive tax credits or cost-sharing reductions while enrolled in a qualified health plan through an exchange, if their employer does not offer a coverage option that is affordable and provides a basic level of value (i.e., ‘‘minimum value’’). Certain large employers who fail to offer affordable plans that meet this minimum value may be assessed a tax penalty if any of their full-time employees receive a premium tax credit through the Exchange. Thus, the relationship between the employee’s receipt of a credit and the potential tax penalty imposed on an employer could create an incentive for an employer to retaliate against an employee. Section 18C protects employees against such retaliation.

Section 18C also protects employees against retaliation because they provided or are about to provide to their employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of or amendment made by title I of the Affordable Care Act.

Prior cases under other laws have recognized a reduction in work hours as an adverse action. Accordingly, I believe the Department of Labor will find that the practices of employers to evade ACA liability are unlawful.

The public record of comments on these regulations are here.

My comments on the regulations are here.

Employees have 180 days to file complaints under 29 U.S.C. 218C (ACA Section 1558).  Employees need to know that there is a place where they can make complaints and a time limit to make those complaints.

Sadly, the Washington Post did not print my comments, or any other discussion of the illegality of the reductions in hours for part-timers. 

This Wednesday, August 14, 2013, at 7:35 a.m., I will be the guest on WSHC's morning call-in show with Zakee McGill and John Case.  We will be discussing Section 1558, and what workers can do if they face adverse actions on account of employers trying to evade their health care duties under the ACA.  You can call in at, 304-876-5369, or listen live at: http://897wshc.org/listen_live/index.html.

We might not reach all the readers of the Washington Post, but we have to start getting the word out.  It is illegal to punish workers for qualifying for health care assistance.  Workers have 180 days to file a complaint with OSHA.

Written by Richard Renner, Kalijarvi, Chuzi, Newman & Fitch

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