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Whistleblower Protection for Consumer Product Complaints

A federal statute that became law on August 14 provides remedies against employers for employees who suffer adverse employment action for having complained about unsafe consumer products made or sold by their employer. The Consumer Product Safety Improvement Act of 2008 establishes an administrative complaint procedure backed by the possibility of a civil lawsuit if the agency does not act.

The protection is limited to employees of manufacturers, private labelers, distributors and retailers. It prohibits such employers from discharging or otherwise discriminating against employees who provide the federal government or a state attorney general with information about a violation of any law enforced by the federal Consumer Product Safety Commission, or who participate in a proceeding concerning such a violation, or who objected or refused to participate in any activity that the employee reasonably believes is a violation.

The Commission is concerned with “consumer” products, which means products (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, but does not include on-road motor vehicles, boats, aircraft, food, drugs, cosmetics, pesticides, alcohol, tobacco, firearms, and medical devices.

According to the Department of Labor, the enforcement agency for the whistle blower provision, “otherwise” discriminating includes laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, intimidation, reassignment affecting promotion prospects and reducing pay or hours.

A person who believes that his or her employer has violated the new whistle blower provision may file a complaint within 180 days with the closest OSHA office (the responsible bureau within the Department of Labor). If the OSHA office determines that there was a violation it may order reinstatement with the same seniority and benefits, payment of back pay with interest, and compensatory damages, including compensation for special damages, expert witness fees, and reasonable attorney’s fees. The losing party may seek a hearing before an administrative law judge, from which there is one administrative appeal.

A party dissatisfied with the final result may obtain review of the Department’s decision in the United States Court of Appeals for the circuit in which the violation occurred. The employee may file a civil action in federal district court if the Department does not issue a final order within 210 days from the filing of the complaint, or within 90 days after issuance of a written determination by the OSHA office.

Although the statute does not say so directly, the administrative enforcement procedure appears to be the exclusive means for a private party to seek relief for a whistle blower violation.

The full text of the new statute is available at the Consumer Product Safety Commission website. Further information about enforcement is available at OSHA’s Office of the Whistleblower Protection Program.