CPSC Whistleblower Protection
What law protects CPSC Whistleblowers?
On August 14, 2008, Congress enacted the Consumer Product Safety Commission Reform Act (CPSC Reform Act) to prohibit manufacturers, private labelers, distributors, and retailers from retaliating against an employee because the employee provided information to an employer, a regulatory agency, or a State Attorney General about a reasonably perceived violation of the CPSC Reform Act or any other act enforced by the CPSC.
Elements of a CPSC Whistleblower Retaliation Claim
Similar to the retaliation provision of the Sarbanes-Oxley Act ("SOX"), a CPSC whistleblower retaliation plaintiff must prove that she (1) engaged in protected conduct; (2) the employer knew that she engaged in protected conduct; (3) the employer took adverse action against her; and (4) the protected conduct contributed to the employer's decision to take an adverse action.
The whistleblower provision of the CPSC Reform Act prohibits an employer from discharging or otherwise discriminating against an employee because the employee: (1) provides information relating to a violation of the CPSC Reform Act or any act enforced by the Commission to the employer, the Federal Government, or the State Attorney general; (2) testifies or assists in a proceeding concerning a violation of the CPSC Reform Act or any act enforced by the Commission; or (3) refuses to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates the CPSC Reform Act or any act enforced by the Commission.
Specific examples of protected conduct include:
Reporting violations of the standard for the flammability of children's sleepwear;
Disclosing information about the use of consumer patching compounds containing free-form asbestos;
Reporting an employer's violation of a safety standard for creating architectural glazing materials;
Reporting choking incidents involving marbles, small balls, latex balloons and other small parts;
Reporting the export of banned or misbranded products;
Disclosing information about an employer's import or distribution of new all-terrain vehicles in violation of the CPSC Reform Act; and
Providing information about an employer who manufactures a toy that contains an unsafe amount of lead.
Recognizing that the "duty speech" doctrine limits state and local government employees from bringing First Amendment whistleblower retaliation claims based on their work-related speech, the CPSC Reform Act, like SOX, explicitly provides protection for those employees who blow the whistle in the ordinary course of their job duties or who act on their own initiative.
Employer Knowledge of Protected Conduct
Demonstrating knowledge of protected conduct is generally not difficult because the Department of Labor recognizes the doctrine of constructive knowledge, i.e., Administrative Law Judges will often impute knowledge of protected conduct to a supervisor who has knowledge of the protected conduct and had some influence on the decision to take adverse action.
Prohibited Acts of Retaliation
The CPSC Reform Act prohibits a broad range of adverse employment action, including discharge or discrimination with respect to the employee's compensation, terms, conditions, or privileges of employment. The Supreme Court's Burlington standard will apply to the whistleblower provision of the CPSC Reform Act, thereby prohibiting any conduct that would dissuade a reasonable employee from engaging in protected conduct.
To prevail in a CPSC whistleblower action, an employee must prove by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A CPSC whistleblower need not show that the protected conduct was a significant or motivating factor in the adverse action.
A prevailing employee is entitled to "make whole" relief, which may include: (1) reinstatement; (2) back pay; (3) compensatory damages; and (4) attorney fees and litigation costs, including expert witness fees.
Procedures Governing CPSC Whistleblower Actions
Actions brought under the whistleblower provisions of the CPSC Reform Act are governed by the same rules and procedures that govern analogous whistleblower protection statutes, including the whistleblower provisions of the Federal Rail Safety Act, Surface Transportation Assistance Act, and National Transit Systems Security Act provided by the 9/11 bill for employees in the rail, bus, and public transportation industries, which are at 49 U.S.C. § 20109; 49 U.S.C. § 31105; and 6 U.S.C. § 1142 respectively. The complaint must be filed with the Department of Labor ("DOL") within 180 days of the employee becoming aware of the retaliatory adverse action. OSHA investigates the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA's determination by requesting a de novo hearing before a DOL Administrative Law Judge ("ALJ"). Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court and the hearings are less formal than federal court trials. For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ's decision to the DOL Administrative Review Board ("ARB") and can appeal an ARB decision to the Circuit Court of Appeals in which the adverse action took place. If DOL does not issue a final decision within 210 days of the employee filing the complaint, the employee can remove the claim to federal court and is entitled to a trial by jury. Employers do not have an option to remove a CPSC retaliation claim to federal court.
If you feel that you have been the subject of retaliation because of your disclosure regarding violations of consumer product safety, contact The Employment Law Group® law firm at 1-888-603-0983.
The Employment Law Group® law firm recently published an article on the whistleblower provision of the Consumer Product Safety Commission Reform Act.
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