The Occupational Safety and Health Administration (OSHA) has issued a final rule implementing the whistleblower provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA). OSHA is charged with enforcing the whistleblower provisions in 21 separate statutes, including Section 219 of the CPSIA. Section 219 of this statute prevents manufacturers, private labelers, distributors, and retailers from firing or otherwise discriminating against an employee who provides information to the employer or federal or state government official relating the employer’s violation (or perceived violation) of the CPSIA or related regulations or standards. The employee is also afforded such protections if he or she testifies in a proceeding regarding the violation, assists in such a proceeding, or objects or refuses to participate in an activity that he or she reasonably believes would violate the CPSIA.
As discussed in the summary of the final rule, published in the July 10 edition of the Federal Register, the final regulations establish the procedures and time frames for handling retaliation complaints under CPSIA, “including procedures and time frames for employee complaints to OSHA, investigations by OSHA, appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) . . and judicial review of the [Labor] Secretary’s final decision.”
The final regulations do not deviate significantly from the interim final rules issued in August 2010. Minor differences between the two sets of rules include the following:
- To be considered timely, a retaliation complaint under CPSIA must be filed within 180 days of the alleged retaliation. In response to a commenter’s suggestion that the limitations period should not begin to run until an employee becomes aware of an alleged retaliatory act, OSHA amended the final rule to clarify that the statute of limitations may be tolled “for reasons warranted by applicable case law.”
- With respect to investigations of whistleblower complaints, OSHA has revised the procedures under CPSIA to include certain safeguards “aimed at ensuring that complainants and respondents have equal access to information during the course of the OSHA investigation.” Specifically, the rule stipulates that after receiving a complaint, “the [Labor] Secretary shall notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint.” In addition, the Secretary must allow both parties to submit a written response to the complaint, meet with a representative of the Secretary and present statements from witnesses. Moreover, throughout the investigation of the complaint, OSHA will provide the complainant or the complainant’s counsel a copy of all of the respondent employer’s submissions to the agency regarding the whistleblower complaint, redacted of confidential information as necessary. The complainant will be given the opportunity to respond to these submissions. Finally, the rule states that the complainant will be given a copy of all materials that the agency provides to the employer.
- With respect to hearings before an ALJ, the final regulations reference the “broad authority of ALJs to limit discovery in order to expedite the hearing.” According to OSHA, this section was included to make it consistent with other OSHA whistleblower regulations. Similarly, a section was added that specifies that the formal rules of evidence will not apply to proceedings before an ALJ, but that “rules or principles designed to assure the production of the most probative evidence will be applied.”
- As for the ability to appeal the ALJ’s decision and order, OSHA revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days.
- With respect to the matters contested in the petition for review, the interim final regulations had specified that "[a]ny exception not specifically urged will ordinarily be deemed waived by the parties." Agreeing with a commenter that this might be too stringent a standard, OSHA replaced the phrase "ordinarily will" with "may."
- As for the complainant’s ability to file a whistleblower complaint in federal court, OSHA has revised the final rule “to more clearly explain the circumstances in which the complainant may file a complaint in district court and to incorporate the statutory provision allowing a jury trial at the request of either party in a district court action under CPSIA.” Specifically, the final rule states that a complainant can file a CPSIA whistleblower complaint in federal court “without regard to the amount in controversy” in either of the following circumstances: (a) the complainant can file such a complaint within 90 days after receiving a written determination from the Assistant Secretary stating whether or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of CPSIA, so long as the Secretary has not yet issued a final decision; or (b) there has been no final decision of the Secretary within 210 days of the filing of the complaint. Either party may request a jury trial. However, the agency notes that it is the Secretary's position that complainants may not initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the complaint or within 90 days of the complainant's receipt of the Assistant Secretary's written findings.
The provisions of this final rule take effect upon publication in the Federal Register.
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