Affordable Care Act, Conscientious Employee Protection Act, Dodd-Frank Wall Street Reform and Consumer Protection Act, Securities and Exchange Commission (SEC), Whistleblower, Whistleblower Complaints

Hear that? More whistles are blowing

That seems to be the message from Congress and the courts in the past year, as the number and variety of workplace whistleblower claims keep expanding.

First, the whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, seem to be finally gaining traction, as the “Office of the Whistleblower” of the Securities and Exchange Commission (SEC) announced that it received 3,238 whistleblower complaints and tips in fiscal year 2013 (the most ever), and obtained judgments and sanctions exceeding $1,000,000 in 118 different matters (the most ever).  In addition, the SEC issued four monetary awards to whistleblowers under Dodd-Frank in 2013, including a whopping $14 million award (the largest ever under Dodd-Frank) to a whistleblower whose information led to the recovery of investor funds.  Given that Dodd-Frank provides that whistleblowers will be awarded 10-30 percent of the monetary sanctions collected, we can presume that the sanctions collected were between $47 million and $140 million.  Nice tip for investors.

Second, the beloved Affordable Care Act (ACA), which is taking full effect this year, includes protections for employees who are retaliated against for engaging in protected activities, including: (1) receiving a health insurance marketplace subsidy or health plan cost-sharing reduction; (2) reporting, reasonably and in good faith, a violation of the ACA to the employer, the federal government or the state attorney general; (3) participating in a proceeding concerning an ACA violation; or (4) objecting to or refusing to participate in activity reasonably believed to violate the ACA.  Claims must be filed with OSHA.  Expect to see many of these cases soon.

Third, a New Jersey court has rejected a recent line of cases that had held that, if the alleged protected conduct fell within the plaintiff’s job duties and responsibilities, the employee could not bring a claim under the state’s Conscientious Employee Protection Act (CEPA).  In Lippman v. Ethicon, Inc., the Appellate Division of the New Jersey Superior Court rejected the reasoning reflected in the earlier cases as contrary to the “broad remedial purposes” of CEPA, and held that “watchdog employees” are “the most vulnerable to retaliation because they are uniquely positioned to know where the problem areas are and to speak out when corporate profits are put ahead of consumer safety.”  A “watchdog employee” bringing such a claim, however, must either (a) first pursue and exhaust all internal means of securing compliance, or (b) refuse to participate in the objectionable conduct.

The take-home for employers from these developments:

  • Learn about these new laws and ensure that your company’s policies and practices comply;
  • As needed, adopt a compliance policy and code of conduct, and train your managers and employees, preferably with visible support from C-level officers;
  • Set up an anonymous hotline or ombudsman for reporting suspected compliance issues; and
  • React promptly and effectively to any complaint, and ensure that no retaliation occurs.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLCFor more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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Affordable Care Act, IRS

EMPLOYERS CANNOT AFFORD TO WAIT TO DETERMINE WHICH EMPLOYEES ARE FULL-TIME UNDER THE AFFORDABLE CARE ACT

Many employers already know that if they have 50 or more full-time equivalent employees, beginning January 1, 2014, they will likely need to offer health insurance to full-time employees or pay a penalty under the Patient Protection and Affordable Care Act (“ACA”).  However, employers should not wait to start identifying whether employees are full-time under the ACA.  This is because the implementation of the ACA will likely allow employers to take advantage of a “look back” period of up to 12-months to determine whether workers are full-time (generally defined under the ACA as an average of 30 hours per week, or at least 130 hours in a month).

While the Department of Treasury and the Internal Revenue Service (“IRS”) have not yet finalized the mechanics of the proposed look back, they are currently considering possible alternatives to requiring a month-by-month analysis of full-time employee status to determine the employer’s obligations under the ACA.  One alternative under consideration would give applicable employers the option to employ a look back period to provide stability as to which employees would be considered full-time for a particular coverage period.  The purposes of using a look back period would be to give effect to the ACA while giving employers a measure of predictability.  Under the possible look-back period being considered, an employer would assess each employee’s full-time status by looking back at a period of not less than three but not more than twelve consecutive calendar months — as chosen by the employer — to determine whether the employee averaged at least 30 hours per week (or, at least 130 hours per month) during the measurement period.

Based upon the current proposal, if a given employee qualifies as a full-time employee during the measurement period, then the employee must be treated as a full-time employee during a subsequent “stability period”, regardless of the number of the employee’s hours of service during the stability period, so long as he or she remained an employee.  The stability period would be a period of at least six consecutive calendar months that follows the measurement period and is no shorter in duration than the measurement period.  On the other hand, if an employee is not a full-time employee during the measurement period, the employer would be permitted to treat the employee as not a full-time employee during a stability period not to exceed the measurement period.

Whether and how the look back option will be available to employers is still developing, but employers who are required to offer health insurance to full-time employees or pay a penalty under the ACA should start looking at their employment patterns to determine if using a look back period offers advantages under the ACA and, if so, they should consider adopting amendments to benefit plans to define the look back period.  This is particularly important for employers who hire seasonal workers.

Navigating the post-ACA world will be complex for many employers, but the attorneys of HomansPeck LLC are here to offer guidance and to identify ways in which employers can minimize their exposure.

Questions? Contact Michael Homans at HomansPeck LLC

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