Consumer Product Safety Whistleblower Attorneys

The CPSIA whistleblower law applies to manufacturers, private labelers, distributors, and retailers.  A consumer product is

any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise ....

15 U.S.C. § 2052(a)(5).  A product that is not "customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer” will likely not be deemed a consumer product.  15 U.S.C. § 2052(a)(5)(A).

The CPSIA prohibits an employer from terminating or otherwise discriminating against an employee because the employee

1. provided information to the employer, the federal government, or a state attorney general "relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision" of an order, rule, regulation, standard, or ban enforced by the CPSC;
2. testified, assisted, or participated in a proceeding concerning a violation of a CPSC rule or regulation, or
3. refused to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates a CPSC rule or regulation.

Examples of protected whistleblowing include:

• Reporting violations of the standard for the flammability of children’s sleepwear;
• Disclosing information about the use of consumer patching compounds containing free-form asbestos;
• Reporting an employer’s violation of a safety standard for creating architectural glazing materials; and
• Reporting choking incidents involving marbles, small balls, latex balloons, and other small parts.

The CPSIA protects employees who blow the whistle in the normal course of performing their job duties.

The CPSIA prohibits a wide array of adverse employment actions, including termination and discrimination with respect to the employees’ pay, terms, conditions, or privileges of employment.

To prevail in a CPSIA whistleblower action, the whistleblower must establish that protected whistleblowing was a contributing factor in the unfavorable personnel action. The whistleblower need not prove that protected conduct was the sole factor in the employer’s decision to take the adverse employment action.

“Make whole” relief includes (1) reinstatement, (2) back pay, (3) uncapped compensatory damages, and (4) attorney fees and litigation costs, including expert witness fees.

The statute of limitations for filing a consumer product safety whistleblower claim is 180 days from the date on which the employee is first informed of the adverse employment action (which can be earlier than the effective date of the adverse action).

After the complaint is filed, the Occupational Safety and Health Administration (OSHA) investigates the complaint and may order preliminary relief, including reinstatement of the whistleblower to his previous position. Either the whistleblower or the employer can appeal OSHA's determination by requesting to have the full case heard by a Dept. of Labor administrative judge.

If the Department of Labor has not issued a final decision with 210 days of the filing of the complaint, the whistleblower can remove the case to federal court.