THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT: WHISTLEBLOWERS KURT STITCHER LEVENFELD PEARLSTEIN, LLC DRI PRODUCT LIABILITY CONFERENCE APRIL 16, 2009

OVERVIEW  CPSIA Prohibits Discrimination or Retaliation Against An Employee Who Reports, Or Participates In A Proceeding Regarding, An Alleged Safety Violation  Applies Equally To Employee Who Refuses To Participate in Activity, Policy, Practice, Or Task  Requires Only A “Reasonable Belief” By Employee  Extends To “Ordinary Course” And Independent Reporting Of Alleged Violations  Can Lead To Reinstatement, Back Pay, and Special Damages

TO WHOM DOES 219 APPLY?  MANUFACTURERS  PRIVATE LABELERS  DISTRIBUTORS  RETAILERS

WHAT DOES 219 PROHIBIT?  DISCHARGE OF EMPLOYEE OR  DISCRIMINATION WITH RESPECT TO: –COMPENSATION –TERMS OF EMPLOYMENT –CONDITIONS OF EMPLOYMENT –PRIVILEGES OF EMPLOYMENT

WHEN DOES 219 APPLY?  IF EMPLOYEE PROVIDES, OR IS ABOUT TO PROVIDE, INFORMATION REGARDING ANY ACT OR OMISSION;  EMPLOYEE REASONABLY BELIEVES TO BE VIOLATION OF;  CPSA OR ANY OTHER ACT ENFORCED BY CPSC (OR RELATED RULE, REGULATION, BAN, ETC.);  TO EMPLOYER, FEDS, OR STATE A.G.; OR  PARTICIPATES, OR IS ABOUT TO PARTICIPATE, IN RELATED PROCEEDING; OR  OBJECTS TO, OR REFUSES TO PARTICIPATE IN, RELATED ACTIVITY, POLICY, PRACTICE, ETC.

WHAT HAPPENS IF AN EMPLOYEE SUSPECTS A VIOLATION? HOLD ONTO YOUR HATS: THIS IS CONGRESS, AFTER ALL

COMPLAINT PROCEDURE ROUND ONE:  Employee files complaint with DOL within 180 days of alleged violation  DOL notifies employer of allegations & evidence  Employer may submit written response and meet with DOL to provide witness statements

COMPLAINT PROCEDURE ROUND TWO:  Within 60 days, DOL will conduct an investigation to determine whether there is “reasonable cause” to believe a violation occurred, unless –Employee fails to make prima facie showing that protected action was a “contributing factor” in the adverse employment action, or –Employer shows by clear and convincing evidence that it would have taken same action, even without employee having engaged in protected conduct

COMPLAINT PROCEDURE ROUND THREE:  If no dismissal, DOL investigates and provides written findings to both parties.  Either party may object, and request a hearing, within 30 days of written findings. –No stay of interim relief, pending hearing –No objection => order final & unappealable  Hearing results in final order within 120 days of hearing, unless otherwise settled between the parties.

COMPLAINT PROCEDURE ROUND FOUR:  Loser at hearing may appeal to USCA w/in 60 days of final order from hearing: –USCA where violation occurred or –USCA where employee lived at time of violation  No appeal => loser cannot challenge the finding in any other forum (collateral estoppel)

COMPLAINT PROCEDURE ROUND FIVE:  If DOL fails to issue final order within 210 days of complaint or within 90 days of written determination, employee may go to U.S. District Court: –Amount in controversy irrelevant –On request, jury trial available –Review is de novo –Employee must make prima facie case –Employer must defeat with clear & convincing evidence

WHAT REMEDIES ARE AVAILABLE TO THE EMPLOYEE?  Abatement of violation;  Reinstatement at status quo ante;  Back pay, with interest;  Special damages, including: –Litigation costs –Expert witness fees –Attorney’s fees

WHAT BONES HAS CONGRESS THROWN TO THE EMPLOYER?  Employee cannot recover punitive damages  Employee cannot recover if employee, him/herself, caused the violation at issue  If employee’s complaint was frivolous or made in bad faith, employer can recover a maximum of $1, in attorneys’ fees

CONCLUSION LET’S BE CAREFUL OUT THERE: HE ONLY LOOKS INNOCENT