Date: Sep 08, 2010
The whistleblower protection provisions of CPSIA were effective upon enactment, enabling aggrieved individuals to file complaints challenging any adverse employment action occurring within the 180 day period prior to enactment allegedly resulting in the individual's having engaged in protected activity. Only one administrative law judge decision in a CPSIA case has been reported to date; the complaint was dismissed, although the order has been appealed.
It is unknown how many other CPSIA whistleblower claims may be in the pipeline, but a new interim final rule ("IFR"), published on August 31, 2010 by the U.S. Department of Labor, Occupational Health and Safety Administration ("DOL/OSHA"), will likely govern such cases going forward. The IFR defines key terms and establishes procedures and time frames for the handling of CPSIA whistleblower complaints. DOL/OSHA concurrently published interim final rules providing new or updated case handling procedures governing whistleblower claims under the Surface Transportation Assistance Act, as amended by the 9/11 Commission Act of 2008, and the Rail Safety Improvement Act of 2008. This Alert discusses the significant substantive interpretations and procedural regulations contained in the IFR. Comments on the IFR must be submitted on or before November 1, 2010, and must include the agency name and OSHA docket number, OSHA-2008-0026.
Requirements and Burdens of Proof in a CPSIA Whistleblower Claim
CPSIA whistleblower cases, like any whistleblower case, should be governed by clear procedures, including standards of proof at each phase. The IFR provides a detailed roadmap for CPSIA actions, which we summarize below.
 See Saporito v. Publix Supermarkets, Inc., 2010-CPSIA-00001 (ALJ Recommended Dec. & Order, March 5, 2010) (dismissing complaint for failure to state a claim and awarding attorney's fees to the employer-respondent up to the statutory maximum of $1,000 on the ground that the complaint was frivolous and in bad faith; complainant appealed the ALJ's findings and order to the Administrative Review Board which has not yet issued a decision).
 The OSHA Office of the Whistleblower Protection Program is responsible for investigating and enforcing the whistleblower provisions of 19 federal statutes dealing with employee health and safety, environmental and nuclear protection, corporate financial fraud and security, and consumer protection, including the CPSIA. The DOL Office of the Chief Administrative Law Judges is responsible for conducting de novo hearings in whistleblower cases based upon objections filed by any party aggrieved by a determination rendered by OSHA. The ARB provides the final level of review in DOL whistleblower cases, just as it does for a broad variety of wage, worker's compensation, discrimination, and labor condition application cases subject to the jurisdiction of the Secretary of Labor.
 In Saporio v. Publix Supermarkets, Inc., supra, complainant asserted protected activity based on complaints relating to alleged toxic substances used in the manufacture of milk product packaging, a claim rejected as non-cognizable by OSHA and by the ALJ. Alternatively, the ALJ rejected the complaint on the grounds that it was purely speculative and failed to meet the reasonableness standard.
 See 75 Fed. Reg. 28336 (May 20, 2010) (testing, certification and labeling of consumer products and children's consumer products) and 75 Fed. Reg. 28208 (May 20, 2010) (component testing).
 By contrast, Congress neglected to expressly provide for jurisdiction in the district courts to enforce preliminary orders issued under the whistleblower provisions of the Sarbanes Oxley Act. See Bechtel v. Competitive Technologies, Inc., No. 05-2404 (2d Cir. May 1, 2006) (vacating a district court order based on lack of jurisdiction and due process grounds); Tennessee Commerce Bancorp v. Solis, No. 10-5602 (6th Cir. May 25, 2010) (staying enforcement of pending preliminary order due to the existence of a serious legal question regarding jurisdiction and the likelihood of irreparable harm to the employer-respondent, pending the outcome of an expedited circuit appeal).
 Recently, ARB Chairman Paul Igasaki served notice of the Board's intent to expedite the briefing process in all whistleblower cases to further the goal of reducing the substantial backlog of cases and meeting the legislative goal of issuing final administrative orders within 210 days of the filing of the complaint. During legislative negotiations on CPSIA, the business community heavily criticized the 210-day timeframe written into the law as unrealistic. Maintaining tight administrative deadlines is thus central to both the statutory framework and to fairness of the process.