Employee Whistleblower Protections Continue to Expand

by Foley & Lardner LLP

[author: Leila Nourani, Jenna K. Murphy]

Are you aware of the employee whistleblower protections contained in the Consumer Product Safety Improvement Act of 2008 (CPSIA)? In the recent case of Saporito v. Publix Super Markets, Inc., the U.S. Administrative Review Board (ARB) broadly interpreted the enforcement powers of the Consumer Product Safety Commission (CPSC), resulting in broad application of the whistleblower protections contained in the CPSIA. Thomas Saporito worked as a maintenance technician in a dairy production facility operated by Publix Super Markets. Publix manufactures and sells, among other groceries, milk products. In 2007, Mr. Saporito complained to his supervisors that Publix’s milk bottles were contaminated with chemicals and manufacturing waste and that the containers housing those bottles were similarly tainted. The following year, Mr. Saporito also complained to his supervisors that the pressurization in the milk filling room was inadequate and could potentially result in milk and bottle contamination. He was later terminated. In his CPSIA whistleblower action, Mr. Saporito alleged Publix had subjected him to a hostile work environment and ultimately fired him after he complained about the potential food safety hazards. Mr. Saporito filed his complaint under the CPSIA, which provides protection for whistleblowers and allows employees who are retaliated against for raising violations of acts that the CPSC enforces to file complaints with the Secretary of Labor. The Saporito decision notes that the Secretary of Labor has “delegated her authority to issue final agency decisions under the CPSIA to the ARB.”

OSHA investigated Mr. Saporito’s allegations but ultimately dismissed the matter, claiming that food safety complaints are not governed by the CPSIA. Mr. Saporito then requested a hearing before an Administrative Law Judge (ALJ). The ALJ agreed with OSHA, focusing on the fact that Mr. Saporito failed to allege he had engaged in activity protected by the CPSIA. Both OSHA and the ALJ appear to have based their determinations on the fact that the CPSIA expressly excludes “food” from the definition of a consumer product, thus excluding the milk products at issue from the CPSIA’s jurisdiction.

The ARB rejected the views of OSHA and the ALJ, and instead found that the whistleblower protections offered by Section 219 of the CPSIA extend to reported violations that fall under any act enforced by the CPSC. In explaining this logic, the ARB pointed to the fact that the CPSC enforces acts other than the CPSIA, including the Federal Hazardous Substances Act and the Poison Prevention Packaging Act. The ARB reasoned that because the Commission’s power extends beyond the CPSIA, the whistleblower provisions in the CPSIA also should extend beyond consumer products and encompass violations occurring pursuant to other acts that the CPSC enforces.

Employers also should note that Mr. Saporito filed his complaint prior to enactment of the Food Safety Modernization Act (FSMA), which was signed into law on January 4, 2011. Food safety workers are now protected under FSMA, which provides food industry workers with a cause of action if they suffer retaliation for reporting FSMA violations.

The Saporito decision marks a broad interpretation of the CPSC’s enforcement powers, confirming that these powers extend well beyond matters concerning consumer products.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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