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Published byElle Hatten Modified over 9 years ago
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THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT: WHISTLEBLOWERS KURT STITCHER LEVENFELD PEARLSTEIN, LLC DRI PRODUCT LIABILITY CONFERENCE APRIL 16, 2009
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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
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TO WHOM DOES 219 APPLY? MANUFACTURERS PRIVATE LABELERS DISTRIBUTORS RETAILERS
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WHAT DOES 219 PROHIBIT? DISCHARGE OF EMPLOYEE OR DISCRIMINATION WITH RESPECT TO: –COMPENSATION –TERMS OF EMPLOYMENT –CONDITIONS OF EMPLOYMENT –PRIVILEGES OF EMPLOYMENT
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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.
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WHAT HAPPENS IF AN EMPLOYEE SUSPECTS A VIOLATION? HOLD ONTO YOUR HATS: THIS IS CONGRESS, AFTER ALL
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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
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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
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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.
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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)
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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
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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
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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 $1,000.00 in attorneys’ fees
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CONCLUSION LET’S BE CAREFUL OUT THERE: HE ONLY LOOKS INNOCENT
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