Co-authored by Remington A. Gregg
Consumers gained new protections against unsafe products in August 2008 when President George W. Bush signed the Consumer Product Safety Improvement Act (CPSIA) into law. One of the law’s provisions included protections for employees who blow the whistle on unsafe products. The whistleblower sections safeguard employees from retaliation when they report to their employer, the federal government, or a state attorney general potential violations of any statute or regulation within the jurisdiction of the Consumer Product Safety Commission (CPSC), the federal agency that is charged with protecting the public from products that could cause injury or death.
Before Congress passed the CPSIA, individuals who bravely blew the whistle on practices that contributed to unsafe products had few to no options for defending themselves against retaliation from vindictive employers. Because of that, up until ten years ago, workers who warned about unsafe products often put their own jobs on the line because manufacturers, distributors, or others wanted to bury the truth about products’ hidden dangers.
A letter from more than 40 public interest groups in support of the CPSIA whistleblower protections described multiple accounts of retaliation that employees faced for reporting consumer safety violations. For instance, a product engineer was fired for informing management that lighting products violated federal safety standards and were being sold without legally-required testing. And, a project engineer was fired after warning the CPSC that his company continued to sell faulty home furnaces, even after he warned the company about a defect that resulted in a disastrous home fire.
The CPSIA’s whistleblower provision establishes robust anti-retaliation rights for employees and protects them from reprisal for disclosing to authorities any type of violation of product safety laws and regulations. In particular, the law gives employees the right to:
- File a complaint within 180 days of the retaliation;
- Request an investigation and interim relief by the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA), the agency responsible for enforcing workplace safety standards;
- An administrative hearing and, after exhausting administrative remedies, a jury trial; and
- A wide range of legal remedies including reinstatement, back pay, attorney’s fees, as well as compensatory and special damages.
However, in order to prevail, an employee must prove that his or her whistleblowing was a “contributing factor” in the action taken against them.
Though whistleblower protections in the CPSIA are strong, Congress could still improve the law to address two specific areas where the provisions fall short:
1) As a job prerequisite, corporations frequently require employees to waive their statutory free speech rights through nondisclosure agreements and similar employment policies. Congress should amend the CPSIA whistleblower provision to add an anti-gag provision, which would protect employees from that maneuver and allow them to actually exercise their rights under the CPSIA whistleblower provisions.
2) Congress should remove the “frivolous claim” fine of $1,000, a mechanism that can silence potential whistleblowers for fear that they will be fined if DOL determines that their retaliation claim is frivolous – chilling them from reporting what they believe to be violations of the law. It’s hard enough for whistleblowers to win a case at OSHA as it is. Whistleblowers must prove that their truth-telling was a “contributing factor” in their firing, preventing the likelihood of “frivolous cases”. According to the Corporate Whistleblower Survival Guide, the percentage of whistleblowers who win formal victories under the DOL-administered corporate whistleblower laws has ranged from approximately three to ten percent. Given that the odds are already stacked against the employee, the law should encourage whistleblowers to come forward, not chill them through the threat of a fine.
Employees play a key role in preventing tragedies caused by unsafe products. However, these brave people must themselves be protected in order to properly safeguard the public. Research by whistleblower advocates has shown that the CPSIA whistleblower provision is largely underutilized, and employees who have exercised their rights under the law have had difficulty receiving justice. Workers should never have to risk their job simply for doing their job, including reporting unsafe products. Even in the best of cases with very strong whistleblower protections, it can be a lengthy and cumbersome process to navigate the law and achieve justice for being wrongly terminated in retaliation for blowing the whistle. Employees who are considering coming forward should follow whistleblower survival tips.
Though the Consumer Product Safety Improvement Act gave whistleblowers more rights, we can’t stop improving our product safety laws. Please let Congress know that they should be doing more to support brave employees who report unsafe products!