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THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT:
WHISTLEBLOWERS
KURT STITCHERLEVENFELD PEARLSTEIN, LLC
DRI PRODUCT LIABILITY CONFERENCEDRI PRODUCT LIABILITY CONFERENCE
APRIL 16, 2009APRIL 16, 2009
OVERVIEW
CPSIA Prohibits Discrimination or Retaliation Against An Employee Who Reports, Or Participates In A Proceeding Regarding, An Alleged Safety Violation
Applies Equally To Employee Who Refuses To Participate in Activity, Policy, Practice, Or Task
Requires Only A “Reasonable Belief” By Employee
Extends To “Ordinary Course” And Independent Reporting Of Alleged Violations
Can Lead To Reinstatement, Back Pay, and Special Damages
WHAT DOES 219 PROHIBIT?
DISCHARGE OF EMPLOYEE OR
DISCRIMINATION WITH RESPECT TO:– COMPENSATION– TERMS OF EMPLOYMENT– CONDITIONS OF EMPLOYMENT– PRIVILEGES OF EMPLOYMENT
WHEN DOES 219 APPLY?
IF EMPLOYEE PROVIDES, OR IS ABOUT TO PROVIDE, INFORMATION REGARDING ANY ACT OR OMISSION;
EMPLOYEE REASONABLY BELIEVES TO BE VIOLATION OF;
CPSA OR ANY OTHER ACT ENFORCED BY CPSC (OR RELATED RULE, REGULATION, BAN, ETC.);
TO EMPLOYER, FEDS, OR STATE A.G.; OR
PARTICIPATES, OR IS ABOUT TO PARTICIPATE, IN RELATED PROCEEDING; OR
OBJECTS TO, OR REFUSES TO PARTICIPATE IN, RELATED ACTIVITY, POLICY, PRACTICE, ETC.
COMPLAINT PROCEDURE
ROUND ONE: Employee files complaint with DOL within 180 days of
alleged violation
DOL notifies employer of allegations & evidence
Employer may submit written response and meet with DOL to provide witness statements
COMPLAINT PROCEDURE
ROUND TWO: Within 60 days, DOL will conduct an investigation to
determine whether there is “reasonable cause” to believe a violation occurred, unless– Employee fails to make prima facie showing that protected
action was a “contributing factor” in the adverse employment action, or
– Employer shows by clear and convincing evidence that it would have taken same action, even without employee having engaged in protected conduct
COMPLAINT PROCEDURE
ROUND THREE: If no dismissal, DOL investigates and provides written
findings to both parties.
Either party may object, and request a hearing, within 30 days of written findings.– No stay of interim relief, pending hearing– No objection => order final & unappealable
Hearing results in final order within 120 days of hearing, unless otherwise settled between the parties.
COMPLAINT PROCEDURE
ROUND FOUR: Loser at hearing may appeal to USCA w/in 60 days of
final order from hearing:– USCA where violation occurred or– USCA where employee lived at time of violation
No appeal => loser cannot challenge the finding in any other forum (collateral estoppel)
COMPLAINT PROCEDURE
ROUND FIVE: If DOL fails to issue final order within 210 days of
complaint or within 90 days of written determination, employee may go to U.S. District Court:– Amount in controversy irrelevant– On request, jury trial available– Review is de novo– Employee must make prima facie case– Employer must defeat with clear & convincing evidence
WHAT REMEDIES ARE AVAILABLE TO THE EMPLOYEE?
Abatement of violation;
Reinstatement at status quo ante;
Back pay, with interest;
Special damages, including:– Litigation costs– Expert witness fees– Attorney’s fees
WHAT BONES HAS CONGRESSTHROWN TO THE EMPLOYER?
Employee cannot recover punitive damages
Employee cannot recover if employee, him/herself, caused the violation at issue
If employee’s complaint was frivolous or made in bad faith, employer can recover a maximum of $1,000.00 in attorneys’ fees