Does federal law protect employees who blow the whistle about unsafe consumer products?

On August 14, 2008, Congress enacted the Consumer Product Safety Commission Reform Act (CPSC Reform Act), which includes a retaliation provision prohibiting manufacturers, private labelers, distributors, and retailers from retaliating against an employee because the employee disclosed information about a reasonably perceived violation of the CPSC Reform Act or any other act enforced by the Consumer Product Safety Commission.

Protected conduct under the CPSC Reform Act

Employees are protected when they:

(1) Disclose information to an employer, a regulatory agency, or a State Attorney General about a potential violation of the CPSC Reform Act or any other act enforced by the CPSC;

(2) Testify or assist in a proceeding concerning a violation of the CPSC Reform Act or any other act enforced by the Commission; or

(3) Refuse to participate in an activity or practice that may violate the CPSC Reform Act.

The CPSC Reform Act expressly protects for those employees who blow the whistle in the course of performing their ordinary job duties.

Burden of proof

An employee alleging retaliation under the CPSC Reform Act must prove that: (1) he engaged in protected conduct; (2) the employer knew that they engaged in protected conduct; (3) the employer took adverse personnel action against the employee; and (4) the protected conduct was a contributing factor in the adverse action. If the employee proves these elements by a preponderance of the evidence, the employee prevails, unless the employer can prove that it would have taken the same adverse action in the absence of the alleged protected conduct.

What damages are available to a prevailing plaintiff?

A prevailing employee can recover back pay, compensatory damages, litigation costs, reasonable attorney fees. A prevailing employee may also be entitled to reinstatement.

Procedure for filing a CPSC retaliation complaint

Employees who believe they were subjected to retaliation for reporting alleged violations of the CPSC Reform Act or any act enforced by the CPSC may file a complaint with the Department of Labor within 180 days of the employee becoming aware of the retaliatory 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. If DOL does not issue a final decision within 210 days of the employee filing the complaint, the employee can remove the complaint to a federal district court.