The Occupational Safety and Health Administration (OSHA) has published a final rule regarding the procedures for handling retaliation complaints under the Consumer Product Safety Improvement Act (CPSIA).¹ The CPSIA prohibits manufacturers, private labelers, distributors, or retailers from discharging or otherwise discriminating against employees because the employees provide information relating to violations of any Act enforced by the Consumer Product Safety Commission (CPSC) to the federal government or a state attorney general, testify regarding such violations, or object to participating in any activities believed to be tantamount to such violations. The final rule is relevant to all employers in the consumer product supply chain.

Applicability

The CPSIA protects employees from retaliation for protected activity related to consumer product safety. For purposes of the whistleblower complaint process, “consumer product” means a product or component part for sale to or for the use of a consumer “in or around a permanent or temporary household or residence, a school, in recreation or otherwise,” except for tobacco and tobacco products; motor vehicles or motor vehicle equipment; pesticides; firearms, pistols, revolver, shells, and cartridges; aircraft and aircraft components and appliances; boats, vessels and appurtenances to vessels; and food, drugs, cosmetics and devices. Note that the definition grants whistleblower protections to employees of manufacturers of consumer product component parts by including “or component part” in the definition of a consumer product.

“Protected activity” includes:

providing information related to any act or omission the employee reasonably believes to be a violation of any Act enforced by the CPSC,
testifying in a proceeding concerning such violation,
assisting in a proceeding concerning such violation, or
objecting to or refusing to participate in any activity reasonably believed to be such violation

Process and Burden of Proof

Within 180 days of an alleged retaliation, an employee may file a complaint with OSHA. The complaint my be filed orally or in writing, and no particular form is required. OSHA will notify the respondent of the filing, the allegations in the complaint, and the substance of the evidence supporting the complaint. The notice will be redacted, if necessary, according to confidentiality laws. A copy of the notice will also be sent to the complainant. The complainant and respondent both have 20 days from the receipt of notice of filing to submit affidavits or substantiating documents and to request a meeting to present its position.

OSHA must dismiss a complaint and not investigate or cease investigating if either the complainant fails to make a prima facie showing that the protected activity was a contributing factor in the adverse action or the employer rebuts that showing by clear and convincing evidence that it would have taken the adverse action absent the protected activity. For purposes of determining whether to investigate, OSHA will consider the complainants burden met if, for example, the complainant shows that the employer knew of the protected activity and the adverse action took place shortly after the protected activity, giving rise to an inference that it was a contributing factor in the adverse action.

OSHA has 60 days from the filing of the complaint to issue written findings. OSHA will find reasonable cause to believe a violation occurred if the complainant is able to show, by a preponderance of the evidence, that the protected activity contributed to the adverse action and the respondent fails to show, by clear and convincing evidence, that the adverse action would have been taken even absent the protected activity. If, after an investigation and opportunities for both parties to comment and respond to the complaints, OSHA finds reasonable cause to believe that a violation did occur, OSHA will accompany the findings with a preliminary order requiring the employer, where appropriate, to abate the violation, reinstate the complainant with compensation, and to provide compensatory damages, including costs and expenses for the complaint. If the complaint is found to be frivolous, OSHA may award the employer a reasonable attorney’s fee to be paid by the complainant.

In appropriate circumstances, OSHA may order economic reinstatement in lieu of preliminary reinstatement. “Economic reinstatement” means that the complainant may receive the same pay and benefits received prior to termination but not actually return to work.

If there has been no final decision within 210 days of the filing of the complaint, complainants may bring action in a U.S. District court seeking reinstatement, back pay, and compensation for any special damages as a result of the discharge.

Judicial Review

Objections to OSHA findings and/or preliminary orders must be filed with the Department of Labor’s Chief Administrative Law Judge within 30 days of receipt of the findings and preliminary order. A respondent alleging that a complaint was frivolous or brought in bad faith who seeks attorney’s fees also has 30 days to file objections or request a hearing before an ALJ. The review hearing is conducted de novo. The ALJ has broad discretion to limit discovery, and the formal rules of evidence do not apply (e.g., hearsay evidence is admissible). A timely filing of objections stays all provisions of a preliminary order except the portion requiring reinstatement. OSHA’s decision to dismiss a complaint without an investigation or to proceed with an investigation is not subject to judicial review.

An ALJ decision may be reviewed by the Administrative Review Board if a petition is filed within 14 days of the date of the ALJ decision. If no timely petition for review is filed, or if a petition is denied, the ALJ’s decision will be the final decision.

A party adversely affected or aggrieved by a final decision of OSHA, ALJ or ARB may filed for review of the order in the United States Court of Appeals for the circuit in which the complainant resided on the date of the violation.

Other Provisions

Withdrawal. A complainant may withdraw a complaint any time prior to the filing of objections to OSHA findings and/or preliminary order. OSHA may withdraw findings and/or preliminary orders any time before the expiration of the 30 day objection period. Either party may withdraw objections any time before OSHA’s findings and/ or preliminary order become final and may withdraw a petition for ALJ review any time before the ALJ decision becomes final.

Settlement. Parties may settle any time before findings and/or order are objected to or become final. The complainant, respondent and OSHA must agree to the settlement. After the filing of objections, the case may be settled if the parties agree and the ALJ or ARB approves the settlement.

Enforcement. If a respondent fails to comply with a preliminary or final order, OSHA or the complainant may file a civil action seeking enforcement in a U.S. District court. The district court has jurisdiction to grant all appropriate relief.

Information for Employers

Employers in the consumer product supply chain can best avoid whistleblower proceedings by having clear procedures in place to handle employee complaints, providing training to managers, and clearly documenting adverse employment actions. Such procedures should, at the very least, include documentation sufficient to meet the “clear and convincing evidence” standard for whistleblower actions.

Kelley Drye & Warren LLP

Kelley Drye & Warren’s Consumer Product Safety practice group is experienced in providing advice on the difficult issues of how and when potentially hazardous consumer products must be reported to the CPSC. If product recalls are necessary, we work with our clients and CPSC staff to quickly develop and implement cost-effective communications programs that satisfy product liability concerns and minimize potential penalties. When the CPSC threatens or brings enforcement actions, we advise our clients on appropriate strategies.

For more information about this client advisory, please contact:

Christie Grymes Thompson
(202) 342-8633
cgthompson@kelleydrye.com

¹ 29 C.F.R. Part 1983. See 77 Fed. Reg. 40494 (July 10, 2012).

OSHA Releases Final Rule For Handling CPSIA Whistleblower Complaints