Does the new Whistleblower Protection Law apply to your company?

Posted by: Unknown on Thursday, September 25, 2008 at 12:00:00 am

On August 14, 2008, President Bush signed into law The Consumer Product Safety Improvement Act of 2008 (the "Act"), a comprehensive overhaul of existing consumer product safety laws. In addition to expanding consumer safeguards, the Act gives whistleblower protections to employees who work for employers who are covered by the Consumer Product Safety Act.  These protections are similar to the anti-retaliation laws with which most employers are familiar.

Specifically, the Act prohibits covered employers from discharging or discriminating against any employee who:

  1. Provided, caused to be provided, or is about to provide or cause to be provided, information related to a violation of, or any act or omission they reasonably believe to be a violation of any provision of the Act or any other law enforced by the Consumer Product Safety Commission (the "Commission");
  2. Testified or is about to testify in a proceeding concerning such a violation; 
  3. Assisted or participated in, or is about to assist or participate in, such a proceeding; or 
  4. Objected to, or refused to participate in, any activity, policy, practice or assigned task that they (or other such persons) reasonably believed to be a violation of any provision of the Act or any other law enforced by the Commission, or any order, rule, regulation, standard, or ban under such laws.

Covered employers include all manufacturers (including importers), distributors, retailers and private labelers of consumer products, which are, with some notable exceptions, defined broadly as anything produced for or distributed to consumers for use in or around a residence, a school, in recreation or otherwise.

The Act will be enforced by the U.S. Department of Labor's Occupational Safety & Health Administration. If an employee believes that he has been discharged or otherwise discriminated against in violation of the Act, the employee may file a complaint with the U.S. Secretary of Labor, who has the power to investigate and order relief, such as reinstatement with back pay and compensatory damages, including costs and expenses.

A complainant may bring an action in federal court if the Secretary has not made a final determination within a prescribed time. The court would then have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including reinstatement, back pay with interest, litigation costs, expert witness fees, and reasonable attorney's fees.

Covered employers should treat all employee complaints under this Act seriously and should take appropriate actions to investigate the claims, keeping in mind that an employee only needs to have a "reasonable belief" that a violation has occurred. Furthermore, any adverse action taken against an employee must be based on legitimate, non-discriminatory reasons unrelated to the protected activity so as to avoid liability for retaliation. Even so, employers must note that, under the Act, an employee only needs to show his protected activity was a "contributing factor" in the adverse action. These new whistleblower protections create yet another legal pitfall for covered employers to avoid.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.


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