The Affordable Care Act (ACA)—or “Obamacare”—has gotten plenty of attention due to technical glitches with the website, consumers’ difficulties obtaining (or keeping) insurance through the exchanges, and Health Secretary Sibelius’s recent resignation.

But some notable provisions of the ACA have gone largely unremarked—particularly an amendment to Title 29 of the U.S. Code.

Added by the ACA, § 218c of Title 29 not only protects employees who receive ACA healthcare credits or subsidies, it also shields employees who:

  1. report violations of “this title”;
  2. testify, assist, or participate in a related proceeding; or
  3. object to or refuse to participate in violations of “this title.”

What exactly does § 218c mean when it says “this title”?

One answer is Title I of the ACA, which prohibits various limits on health insurance coverage, and establishes mandatory coverage for preventative services, immunizations, and dependents.

Alternatively, it could be argued that by its plain language, § 218c protects employees who disclose any violation within the entirety of Title 29 because that is the “Title” in which § 218c appears. See 29 U.S.C. § 218c(a)(2).

If § 218c’s “this title” covers everything in Title 29, what does that mean? 

Arguably, the ACA’s whistleblower provision covers numerous federal labor laws—like the FLSA, ERISA, FMLA, ADEA, and OSHA—all of which are codified under Title 29. In fact, the ACA recites that it is amending the FLSA. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1558, 124 Stat. 119, 261 (2010).

What happens if the ACA’s whistleblower provision covers these federal labor laws?

As one court considering this question put it, “if Congress meant ‘this title’ to refer to Title 29, it worked a momentous change in labor law with no one seeming to notice.” Rosenfield v. Globaltranz Enters., Inc., No. CV 11-02327-PHX-NVW, 2012 WL 2572984, at *3 (D. Ariz.. July 2, 2012).

This is because, while all these acts—FLSA, ERISA, FMLA, ADEA and OSHA—have built-in anti-retaliation provisions, the employee protections they provide are typically narrower than that of § 218c. Id. (noting that “objects to” under § 218c “is much less formal” than the FLSA’s own provision, which only protects employees who “‘file[] any complaint’”) (comparing 29 U.S.C. § 218(c)(a)(5) with 29 U.S.C. § 215(a)(3)).

Consequently, Rosenfield concluded § 218c only applies to Title I of the ACA itself. Id.

The courts are mixed: § 218c’s application is unclear

And yet, several other district courts have assumed § 218c does apply to Title 29 generally, or at least to the FLSA. See Wiley v. Asplundh Tree Expert Co., No. 2:13-CV-02952, 2014 WL 1017208, at *8 (S.D. W. Va. Mar. 17, 2014); Falk v. City of Glendale, No. 12-CV-00925-JLK, 2012 WL 2390556, at *5 n.11 (D. Colo. June 25, 2012); Jean-Louis v. Metro. Cable Commc’ns, Inc., 838 F. Supp. 2d 111, 120 n.5 (S.D.N.Y. 2011).

On the other hand, a few treatises and periodicals—and even Westlaw itself—have concluded “this title” refers only to the ACA’s Title I and not to Title 29. E.g., 70 False Cl. Act and Qui Tam Q. Rev. NL 8,  n.77 (July 1, 2013-Sept. 30, 2013) (“The phrase ‘this title,’ means Title I of the []ACA, not Title 29 of the United States Code.”); 10ACanan & Mitchell, Employee Fringe & Welfare Benefit Plans § 10A:19 (2014 ed.); 29 U.S.C.A. § 218c note (“This title, referred to in subsec. (a)(2), (5), means Title I of the Patient Protection and Affordable Care Act . . . .”).

To date, the issue remains unconsidered by the overwhelming majority of courts, including any federal court of appeals.

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