[author: Marta Moakley, XpertHR Legal Editor]
On July 10, 2012, the Occupational Safety and Health Administration (OSHA) issued its final rule setting forth procedures for filing and processing of retaliation complaints under the Consumer Product Safety Improvement Act of 2008 (CPSIA). The CPSIA protects employees of consumer product manufacturers, importers, distributors, retailers and private labelers from retaliation for reporting reasonably perceived violations of the CPSIA, such as an employer's failure to report a defective product to the Consumer Products Safety Commission (CPSC). OSHA administers the Whistleblower Protection Program, which enforces the antiretaliation provisions of 21 federal statutes, including the CPSIA.
Effective July 10, 2012, the CPSIA final rule establishes complaint procedures for employees who believe they have been retaliated against for engaging in a protected activity, such as testi fying in a hearing before the CPSC. Retaliatory actions can include firing or laying off, blacklisting, demoting, disciplining or intimidating. According to the rule, the process is as follows:
Initial Complaints and Investigation. Employees must file complaints with OSHA within 180 days of the date that they become aware - or should have become aware - of the retaliation. The complaint may be in any form, and in any language. The employee need only show that the protected activity affected the employer's decision. The employer has a higher burden of proof, and must show with reasonable certainty that the adverse action would have been taken regardless of the employee's protected activity.
Initial Findings and Preliminary Order. The Assistant Secretary must issue its' initial findings within 60 days of the filing of the complaint. If the Assistant Secretary finds that there is reasonable cause to believe the complaint has merit, it may issue a preliminary order providing for remedies such as reinstatement, back pay and compensatory damages. The employer must show with reasonable certainty that the protected activity was not a factor in the adverse action in order to prevail at this stage.
ALJ Hearing. The employee or the employer has 30 days to appeal the Assistant Secretary's preliminary order to an Administrative Law Judge (ALJ), who will conduct a hearing and examine all of the evidence. Failure to appeal results in the preliminary order becoming the agency's final decision. In addition, pending the appeal, any order reinstating the employee to his or her position will take effect. An employer must meet a very high burden to postpone the employee's reinstatement. Any other orders, such as for back pay, will be delayed until the end of the proceedings. The ALJ has 120 days to make its decision.
ARB Review. The employer or the employee has 14 days to appeal the ALJ decision to the Administrative Review Board (ARB). The ARB has 30 days to decide whether to take the appeal. The ARB must issue any final decision within 120 days of the conclusion of the ALJ hearing.
Federal Court Procedures. The employee may file a court claim with the US District Court if no decision has been issued within 210 days of filing the complaint, or within 90 days after the Assistant Secretary's initial finding. The employee may request a trial by jury as part of the district court claim. However, if a final agency decision has been made, the ARB rules on the appeal, or the ARB declines to hear the appeal, then a party may only file an appeal with the federal circuit court within 60 days of the determination. No federal court claim is available once the agency has reached its decision.
Considering the light burden of proof for employee complainants set forth in the new procedure outlined above, employers should continue to ensure that they provide extensive training on ethics, loyalty and integrity policies; provide adequate means for employees to make complaints internally; protect whistleblowers from retaliation; and maintain extensive documentation of each complaint or internal investigation.