ARBOn April 28, 2017, the United States Department of Labor Administrative Review Board (“ARB”) allowed a whistleblower retaliation claim under the Patient Protection and Affordable Care Act (“ACA”) to proceed even though the purported protected activity alleged in the complaint made no reference to ACA provisions.  The case is Gallas v. The Medical Center of Aurora, DOL Administrative Review Board Nos. 16-012, 15-076, ALJ Nos. 2015-ACA-5, 2015-SOX-13 (ARB Apr. 28, 2017).

Complainant’s Allegations

In Gallas, a nurse alleged that a medical center had fired her in retaliation for reporting violations of Title I of the ACA. Specifically, the nurse alleged that she complained that the medical center’s “TeleMental Health” program, which involved conducting emergency psychiatric assessments remotely, violated the Emergency Medical Treatment and Labor Act (“EMTALA”), the Health Insurance Portability and Accountability Act (“HIPAA”), and state laws and ethics rules because it provided substandard service and because the medical center had improperly required insurance pre-authorization before admitting certain patients.  The medical center’s investigation found the nurse’s complaints meritless, and it ultimately terminated the nurse after she repeatedly refused to perform evaluations remotely.


On July 15, 2015, the ALJ granted the employer’s motion to dismiss on the grounds that the complaint failed to allege any protected activity under the ACA. The ARB, comprised entirely of Obama appointees, reversed this decision on appeal, holding that the pleading standard for a whistleblower ACA claim “is not a demanding standard.”  Rather, a complaint “need only allege activity or disclosures relatedto ACA’s subject matter” – it need not cite a specific section of the ACA or identify an actual violation of the ACA.  Indeed, a disclosure is protected if it “relates to a general subject that was not clearly outside the realm covered by the [ACA].”

Applying this standard, the ARB held that while the ACA does not explicitly incorporate the laws cited by the nurse (i.e., EMTALA or HIPAA), the subject matter of those statutes is addressed by many of the ACA’s general reforms, including its provisions on the use of best clinical practices, quality care reporting and patient protections related to emergency care, and essential health benefits requirements.  The ARB also noted that the ACA either extended or rendered moot many of HIPPA’s portability rules.  Thus, the nurse’s alleged protected activity relating to EMTALA, HIPAA and pre-authorization sufficiently related to matters contained in the ACA.


Given that ACA protected activity need only relate to a general subject covered by the ACA – at least according to the DOL’s ARB as currently constituted – employers in the healthcare industry face a challenging standard regarding the scope of protected activity. Unless the employer can essentially show that the employee’s activity bears no relation to health care or health care financing, it will likely be deemed by the current ARB to be within the realm of the ACA’s whistleblower protection.

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Photo of Lloyd B. Chinn Lloyd B. Chinn

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative…

Lloyd B. Chinn is a partner in the Labor & Employment Law Department and co-head of the Whistleblowing & Retaliation Group. He litigates employment disputes of all types before federal and state courts, arbitration tribunals (e.g., FINRA, JAMS and AAA), and before administrative agencies in New York and across the country. Lloyd’s practice ranges from litigating compensation disputes to defending whistleblower, discrimination and sexual harassment claims. Although he represents employers in a wide range of industries, including law, insurance, health care, consulting, media, education and technology, he focuses a substantial portion of his practice on the financial services sector. He has tried to final verdict or arbitration award substantial disputes in this area.

Due to Lloyd’s litigation experience, clients regularly turn to him for advice regarding the full range of employment matters, including terminations, whistleblower policy and procedure, reductions in force, employment agreements, and employment policies. For example, in the wake of the financial crisis, he has counseled a number of firms through reductions in force and related bonus and deferred compensation disputes. Lloyd has also been retained to conduct internal investigations of allegations of workplace misconduct, including claims leveled against senior executives.

Lloyd has represented global businesses in matters involving Sarbanes-Oxley and Dodd-Frank whistleblower claims. He has taken an active role in the American Bar Association on these issues, currently serving as Co-Chair of the Whistleblower subcommittee of the ABA Employee Rights and Responsibilities Committee. Lloyd has spoken on whistleblowing topics before a numerous organizations, including the American Bar Association, ALI-ABA, Association of the Bar of the City of New York, and New York University School of Law. He has testified twice before Congressional subcommittees regarding whistleblower legislation and has also published blog postings, articles and client alerts on a variety of topics in this area, including the Dodd-Frank Act’s whistleblower provisions. Lloyd is a co-editor of Proskauer’s Whistleblower Defense Blog, and he has been widely quoted by on whistleblower topics by a number of publications, including the New York Times, the Wall Street Journal, the National Law Journal and Law 360.

Lloyd has also become active in the International Bar Association, presenting on a variety of subjects, including: the #MeToo movement, the COVID-19 pandemic and employment law, and cross-border harmonization of employment provisions in transactions. Lloyd also hosts a quarterly roundtable discussion among financial services industry in-house employment lawyers. He has also published articles and given speeches on a variety of other employment-law topics, including non-solicitation provisions, FINRA arbitration rules, cross-border discovery, e-discovery, and the use of experts.