Client Bulletin #394

9.4.08

For a printer-friendly PDF copy of this Client Bulletin, click here.

The Consumer Product Safety Improvement Act of 2008, recently signed into law by President Bush, provides a new cause of action for “whistleblowers” who engage in protected activity related to defective products.

Although the legislation was prompted by last year’s high-profile recalls of toys and other children’s products, its protections apply far beyond manufacturing, and far beyond the toy and children’s product industries. Employers covered by the CPSIA include not only manufacturers, but also private labelers, distributors, and retailers. And “protected activity” encompasses the CPSIA as well as any other Act enforced by the Consumer Product Safety Commission, and any order, rule, regulation, or standard under any such Act.

The whistleblower protection provisions (Section 219 of the CPSIA), will be enforced by the Department of Labor, Occupational Safety & Health Administration. The whistleblower protection provisions of the CPSIA went into effect on August 14, 2008, the day the Act was signed into law.

Protected Activity

The CPSIA prohibits covered employers from discharging or otherwise retaliating against an employee because the employee engages in certain activities related to his or her reasonable belief that there has been a violation of any provision of the CPSIA, any other Act enforced by the Consumer Product Safety Commission, or any order, rule, regulation, standard or ban under such Acts. The protected activities include the following:

*Providing, or causing to be provided, or being “about to provide” to the employer, the federal government, or a state attorney general, information about the alleged violation.

*Objecting to or refusing to participate in any activity, policy, practice, or assigned task related to the alleged violation.

The CPSIA also protects an employee who, based on such reasonable beliefs, participates or assists in a proceeding under the laws, orders, rules, regulations, standards, or bans enforced by the Commission.

The Commission’s jurisdiction is extremely broad, and so this legislation applies to the gamut of products, including cigarette lighters, bunk beds, swimming pool slides, lawn mowers, matchbooks, and bicycle helmets, among others. For a complete listing of the regulations enforced by the Commission, click here.

Complaints and Enforcement

An employee who believes that he or she has been subject to prohibited retaliation must file a complaint with OSHA within 180 days of the alleged action. After receiving the complaint, OSHA affords the complaining employee and employer an opportunity to submit written statements in support of or in response to the complaint. If the complaining employee describes behavior that shows conduct prohibited by the CPSIA was a “contributing factor in the unfavorable personnel action alleged in the complaint,” OSHA will initiate an investigation to determine whether there is reasonable cause to believe the that complaint has merit.

If OSHA finds reasonable cause, it will enter a preliminary order providing relief, including affirmative action to abate the violation, reinstatement, back pay, and compensatory damages. If OSHA issues a preliminary order, both the employer and the complainant will be given a 30-day period to file objections to the findings and preliminary order and to request a “hearing on the record.”

Not later than 120 days after the date of conclusion of any hearing requested by the complainant or employer, OSHA must issue a final order providing or denying the relief sought by the complainant. If the parties reach a settlement at any time before a final order is issued, OSHA may terminate the proceedings.

Double Standard on Attorneys’ Fees

The CPSIA establishes the “heads I win, tails you lose” standard that is so familiar to employers – if an order is issued in favor of the complainant, he or she need only request an assessment of fees and costs (including attorneys’ and expert witness fees) against the employer, and OSHA will award those reasonably incurred. Employers, however, can be awarded reasonable attorneys’ fees only if the complaint was frivolous or brought in bad faith. Even in such cases, the CPSIA caps the employer’s attorneys’ fee award at $1,000.

The foregoing is only a summary of the CPSIA. For a copy of the statute, click here. If you have specific questions regarding the application of CPSIA to your employment practices, please contact any member of Constangy’s Litigation Practice Group or OSHA Group, or the Constangy attorney of your choice.
  
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, Illinois, Wisconsin, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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