Healthcare law retaliation provisions go into effect
While employers have been focused on making sure that their healthcare plans meet the requirements of the Patient Protection and Affordable Care Act (PPACA), new interim whistle-blower provisions under that law recently went into effect.
The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments on Feb. 22, 2013, that establishes the procedures the agency will use to handle whistle-blowers’ retaliation complaints under the health care law.
The interim rule went into effect upon publication.
OSHA enforces the whistle-blower provisions in 22 statutes, including PPACA’s Section 1558. This provision expressly prohibits an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through a future health insurance exchange; reporting a potential violation of the law’s consumer-protection provisions, such as the prohibition on denying health coverage to individuals with pre-existing conditions and imposing lifetime limits on coverage; and assisting or participating in a whistle-blower proceeding.
“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,” OSHA explained in the announcement.
Effective Jan. 1, 2014, the scope of the law’s coverage will be expanded to include not only employers but also health insurance issuers, regardless of whether the issuer actually employs the person alleging retaliation.
For example, employees will be protected from acts such as issuers limiting or canceling their health insurance coverage.
Consistent with the interpretation of the term “employee” in the other whistle-blower statutes that OSHA oversees, the definition of the term “employee” here also includes former employees and applicants for employment.
Burden of proof favors employees
The rule details that the employee must demonstrate, by a preponderance of the evidence, direct or circumstantial, that the protected activity was a motivating factor — not the motivating factor — in the alleged retaliatory action. The employer then has the burden of showing, by clear and convincing evidence (a higher standard than a preponderance of the evidence), that the business would have taken the same action in the absence of the protected activity. Thus, under this rule, employers will find it more difficult to defend themselves against PPACA retaliation claims than against the typical employment discrimination case.
OSHA has released a fact sheet that outlines how to file a whistle-blower complaint under PPACA. This document explains who is covered by the whistle-blower statute, what activities are protected, what is considered an unfavorable employment action, and the deadlines and procedures for filing a complaint. It also provides additional agency contact information.
OSHA is accepting comments on the interim final rule for 60 days, through April 28, 2013.
Roy Maurer is an online editor/manager for SHRM. Follow him on Twitter @SHRMRoy.
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RILA presses Congress to take action on patent trolls
Arlington, Va.-based Retail Industry Leaders Association (RILA) says costly lawsuits are diverting time and resources from investments in the community and the consumer.
In a letter sent yesterday to House Committee on the Judiciary, RILA senior VP government affairs Bill Hughes stressed the importance of stopping the frivolous and costly lawsuits brought by non-practicing entities, also known as “patent trolls,” on the retail industry.
“The retail industry is a crucial driver of our nation’s economy, and as our customers embrace and utilize technology they expect retailers to do the same,” Hughes wrote in his letter. “However, abusive lawsuits brought by patent trolls have drained valuable time and resources from our companies.”
Retailers have worked to employ innovative technologies to benefit their customers, and some of these improvements have made them targets for lawsuits from patent trolls that have diverted costs from investments in our communities.
According to RILA, 22% of patent cases were filed by patent trolls in 2007. That number has exploded to 60% in 2012, and about 90% cases are without a judgment on the merits, meaning that companies often settle even though no actual infringement might have occurred.
A recent study reported the median cost of litigating a patent case through trial is between $650,000 and $5 million, and the discovery phase costs $350,000 to $3 million.
Cleaning supply company picked up by Walmart
Black Diamond Stoneworks’ cleaning products are coming to the shelves of Walmart, according to the San Clemente, Calif.-based company.
Black Diamond Stoneworks manufactures products to clean and seal natural stone surfaces, maintain and restore wood and laminate floors, remove spots and traffic areas on carpets, and eliminate unwanted pet and human odors.
Two of the company’s most popular products are Black Diamond Granite Plus! Cleaner & Sealer and Black Diamond Stoneworks’ Wood & Laminate Floor Cleaner with PS3. Both will be sold through Walmart.