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While the CFPB’s whistleblower protections are relatively broad, simply asking questions about alleged violations of banking laws will generally not constitute protected conduct. The Sixth Circuit Court of Appeals has held that where a mortgage loan originator had a conversation with his employer bank’s mortgage compliance department about the obligation to mail out adverse action notices informing mortgage loan applicants that they had been denied loans and liability for failure to do so, he did not engage in protected activity. The court held the plaintiff-employee did not engage in protected activity because he did not object to the unlawful practice and instead only asked questions confirming and clarification what he should do in the future. The court, in its decision, implied that if the mortgage loan originator had instead objected to unlawful activity rather than only asking questions, his activity would have been protected under the CFPA, and his employer may have violated the statute by terminating his employment. See Veard v. F&M Bank, 704 Fed. Appx. 469 (6th Cir. 2017).
While the CFPB’s whistleblower protections are relatively broad, simply asking questions about alleged violations of banking laws will generally not constitute protected conduct. The Sixth Circuit Court of Appeals has held that where a mortgage loan originator had a conversation with his employer bank’s mortgage compliance department about the obligation to mail out adverse action notices informing mortgage loan applicants that they had been denied loans and liability for failure to do so, he did not engage in protected activity. The court held the plaintiff-employee did not engage in protected activity because he did not object to the unlawful practice and instead only asked questions confirming and clarification what he should do in the future. The court, in its decision, implied that if the mortgage loan originator had instead objected to unlawful activity rather than only asking questions, his activity would have been protected under the CFPA, and his employer may have violated the statute by terminating his employment. See Veard v. F&M Bank, 704 Fed. Appx. 469 (6th Cir. 2017).
=='''Reasonable Belief Standard in Banking Whistleblower Retaliation Cases'''==
The CFPA whistleblower protection law employs a reasonable belief standard. As long as the plaintiff’s belief is reasonable, the whistleblower is protected, even if the whistleblower makes a mistake of law or fact about the underlying violation of a law or regulation under the CFPB’s jurisdiction.
=='''Prohibited Whistleblower Retaliation Against Financial Services/Banking Industry Employees'''==
The CFPA whistleblower law proscribes a broad range of adverse employment actions, including terminating, “intimidating, threatening, restraining, coercing, blacklisting or disciplining, any covered employee or any authorized representative of covered employees” because of the employee’s protected whistleblowing.
=='''Proving CFPA Whistleblower Retaliation'''==
To prevail under a CFPA whistleblower claim, the whistleblower need only prove that his or her protected conduct was a contributing factor in the adverse employment action, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer’s decision. Where the employer takes the adverse employment action “shortly after” learning about the protected activity, courts may infer a causal connection between the two. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009).
=='''Filing a CFPA Financial Whistleblower Retaliation Claim'''==
CFPA complaints are filed with OSHA, and the statute of limitations is 180 days from the date when the alleged violation occurs, which is the date on which the retaliatory decision has been both made and communicated to the whistleblower.
The complaint need not be in any particular form and can be filed orally with OSHA. A CFPA complaint need not meet the stringent pleading requirements that apply in federal court, and instead the administrative complaint “simply alerts OSHA to the existence of the alleged retaliation and the complainant’s desire that OSHA investigate the complaint.” If the complaint alleges each element of a CFPA whistleblower retaliation claim and the employer does not show by clear and convincing that it would have taken the same action in the absence of the alleged protected activity, OSHA will conduct an investigation.
OSHA investigates CFPA complaints to determine whether there is reasonable cause to believe that protected activity was a contributing factor in the alleged adverse action. If OSHA finds a violation, it can order reinstatement of the whistleblower and other relief.
=='''Federal Railroad Safety Act'''==
The [https://www.law.cornell.edu/uscode/text/49/20109 Federal Railroad Safety Act] prohibits rail carriers from retaliating and discriminating against employees who, inter alia, reported violations of federal railroad safety laws or refused to work under hazardous conditions.
Congress enacted the FRSA whistleblower protection law to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents. The FRSA whistleblower protection law is intended to address and rectify railroads’ history of systematically suppressing employee injury reports through retaliatory harassment and intimidation. See Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156–57 & n.3, 159 & n.6 (3d Cir. 2013) Congress intended to “ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employers.” H.R. Rep. 110-259, 248.”
Click [https://www.zuckermanlaw.com/whistleblower-recovers-250000-punitive-damages/ here] to read about a case in which an FRSA whistleblower [https://www.zuckermanlaw.com/whistleblower-recovers-250000-punitive-damages/ recovered $250,000 in punitive damages]
=='''Railroad Industry Protected Whistleblowing'''==
The FRSA prohibits retaliation against a railroad employee who provides information to a regulatory or law enforcement agency, a member of Congress, or any person with supervisory authority over the employee about a reasonably perceived violation of federal law relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety. In addition, the FRSA protects an employee who:
*refuses to violate a federal law, rule or regulation related to railroad safety or security;
*files a complaint under FRSA;
*notifies or attempts to notify the railroad carrier or Department of Transportation of a work-related personal injury or illness of an employee;
*cooperates with safety or security investigations conducted by the DOT, Department of Homeland Security, or National Transportation Safety Board;
*furnishes information to the DOT, DHS, NTSB, or any federal, state or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with railroad transportation; or
*accurately reports hours on duty.
Under the FRSA’s good-faith report requirement, any report made in good faith is protected activity; whether the medical cause of an injury is ultimately work-related is immaterial. Koziara v. BNSF Railway Co., No. 13-cv-834-jdp, 2015 WL 137272, at *6-7 (W.D. Wis. Jan. 9, 2015); Davis v. Union Pacific Railroad Co., No. 5:12-CV-2738, 2014 WL 3499228, at *6-7 (W.D. La. July 14, 2014).
Examples of FRSA protected whistleblowing include:
*Refusing to perform a roll-by inspection from the ground, where the complainant reasonably believed the inspection would violate Canadian National Railroad Operating Rule 523, which requires: “When duties and terrain permit, at least two crew members of a standing train . . . must inspect passing trains on the ground on both sides of the track. At locations where trains will meet, the train to arrive second must notify the first train when they pass the approach to the siding, to allow crew members to be in position for inspection.”
=='''Scope of Prohibited Retaliation/Adverse Actions'''==
The FRSA prohibits a wide range of retaliatory actions, including discharging, demoting, suspending, reprimanding, or in any other way discriminating against a whistleblower. As Judge Gee recently held in Herbert Rothschild v. BNSF Railway Co., 2017-FRS-0003 (Jan. 2, 2019): The list of prohibited activities is “quite broad” and includes reprimands or counseling sessions “which are coupled with a reference to potential discipline.” Williams v. American Airlines, ARB No. 09-00018, ALJ No. 2007-AIR-00004, slip op. at 10-11(ARB Dec. 29, 2010). . .[A] notice of investigation [can be actionable retaliation] because it does more than refer to “potential” discipline: it notifies the employee that disciplinary processes have been initiated against him. Even if the investigation were ultimately to be canceled, the employee would be aware that his employer was in the process of mustering evidence and witnesses against him, and that he faced a very real risk of discipline. . . . the notice of investigation is the first step in a disciplinary process that can lead to discipline and loss of income, and is part of a progressive discipline policy where successive violations lead to more serious consequences, potentially including termination. . . A written warning is presumptively adverse, including where it implicitly or explicitly references potential discipline. Williams v. American Airlines, ARB No. 09-00018, at 11.
However, being called a “rat” in the workplace is not sufficient to be an adverse employment action where no discipline was threatened, the whistleblower’s position was not changed, and the employer took action to remedy the situation. Clay McDonald v. Union Pacific Railroad Co., 2016-FRS-00034 (ALJ Aug. 20, 2019).
=='''Proving FRSA Whistleblower Retaliation'''==
A “contributing factor” is a factor that had any tendency to affect the employer’s decision to take an adverse action. It is an intentionally low bar that allows an employee to prevail even if his protected activity is only one of many factors the employer considered. Because of this, an employee is not required to prove pretext or retaliatory motive to satisfy the contributing factor standard.
“Neither motive nor animus is a requisite element of causation as long as protected activity contributed in any way—even as a necessary link in a chain of events leading to adverse activity.” Hutton v. Union Pacific R.R. Co., No. 11-091, 2013 WL 2450037, at *9 (ARB May 31, 2013).
For example, if an employee’s injury report led to an investigation, which in turn led to discipline, the protected conduct (reporting the injury) can be deemed a contributing factor in the adverse action. Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013). An FRSA plaintiff “need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.” Araujo 708 F.3d at 158 (3d Cir. 2013) (quoting Marano v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993)).
Contributing factor causation can be shown by alleging facts regarding “temporal proximity, indications of pretext, and a change in the employer’s attitude toward the employee after he engages in protected activity.” Rookaird v. BNSF Ry. Co., No. C14-176RSL, 2015 WL 6626069, at *2 (W.D. Wash. Oct. 29, 2015).
Circumstantial evidence may include a wide variety of evidence, such as temporal proximity, indications of pretext, inconsistent application of an employer’s policies, an employer’s shifting explanations for its actions, antagonism or hostility toward a complainant’s protected activity, the falsity of an employer’s explanation of the adverse action taken, and a change in the employer’s attitude toward the complainant after he or she engages in protected activity. Bechtel v. Competitive Techs., Inc., ARB No. 09-052, ALJ No. 2005-SOX-033, slip op. at 13 (ARB Sept. 30, 2011).
If a complainant proves pretext, it may be inferred that his protected activity contributed to the termination. Riess v. Nucor Corp., ARB 08-137, 2008-STA-011, slip op. at 6 (ARB Nov. 30, 2010).
Proof of animus towards protected activity may be sufficient to demonstrate discriminatory motive. Sievers v. Alaska Airlines, Inc., ARB No. 05-109, ALJ No. 2004-AIR-028, slip op. at 4-5 (ARB Jan. 30, 2008). “[R]idicule, openly hostile actions or threatening statements,” may serve as circumstantial evidence of retaliation. Timmons v. Mattingly Testing Services, 1995-ERA-00040 (ARB June 21, 1996).
“Where protected activity and unfavorable employment actions are inextricably intertwined, causation is established without the need for circumstantial evidence; however, such -33 -evidence may certainly bolster the causal relationship.” Benjamin v. Citationshares Management, L.L.C., ARB No. 12-029, ALJ No. 2010-AIR-001, slip op. at 12 (ARB Nov. 5, 2013).
=='''Retaliatory Investigations Against Whistleblowers'''==
Under certain whistleblower protection laws, a retaliatory investigation can be actionable. Two cases decided under the [https://www.zuckermanlaw.com/railroad-safety-whistleblower-protection-lawyers/ Federal Rail Safety Act (FRSA)] outline when an employer’s investigation into an employee’s conduct may be considered actionable retaliation.
[https://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/FRS/12_003.FRSP.PDF?_ga=2.243945027.732576337.1607740563-27394514.1607198690 In Vernace v. Port Authority Trans-Hudson Corp.], ARB No. 12-003, ALJ No. 2010-FRS-018 (ARB Dec. 21, 2012), Laura Vernace filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that her employer, Port Authority Trans-Hudson Corporation (PATH) violated the FRSA by retaliating against her after she filed an injury report that disclosed an injury she incurred from sitting on a broken chair at work. Soon after she filed the injury report, PATH sent her a charging letter accusing her of “fail[ing] to exercise . . . care and utilize safe work practices to prevent injury” when she did not inspect the chair before sitting on it. A year-long investigation ensued.
OSHA found a violation of the FRSA anti-retaliation law, and the ALJ also determined that PATH unlawfully discriminated against Vernace. In affirming the ALJ’s findings, the ARB held that Path took an adverse action against Vernace when it subjected her to a disciplinary investigation. The ARB noted that the ALJ rightly stated that the FRSA regulations prohibit “intimidating” and “threatening” actions. Further, the ARB explained that Congress had expressly included “threatening discipline” as prohibited discrimination under the FRSA.
PATH contended that it had initiated the disciplinary investigation because of Vernace’s allegedly unsafe use of a chair and not because she submitted an injury report. The ALJ and ARB, however, found that this distinction ignored the plain language of the statute as well as the FRSA’s legislative history citing abuse and intimidation practices often inflicted on railroad workers for reporting or attempting to report work-related injuries.
In Perez v. BNSF Railway Co., ARB Nos. 2017-0014, 2017-0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020), the ARB clarified the types of investigations that can constitute actionable retaliation, and overturned Vernace to the extent that it stood for the proposition that all disciplinary investigations are adverse actions. Citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the ARB held that all adverse actions, including alleged retaliatory investigations, must be considered in context, focusing on whether the action would dissuade a reasonable worker from engaging in protected activity.
Perez worked as a machinist for BNSF and was injured on the job while trying to prevent a door from falling off a train and onto another employee. He reported the injury to his supervisor and saw a doctor at an occupational clinic, per the instruction of a BNSF nurse case manager. Although he identified his injury in an injury report form as a strained hamstring, he attempted to tell the doctor about back pain four times during the course of treatment, but the doctor told him repeatedly that he did not need an MRI or to see a specialist and should instead give it some time to heal. Perez testified that he believed that the doctor worked for BNSF, and therefore assumed that he had reported his back injury to his employer. BNSF, however, alleged that Perez did not report the back injury to a regular BNSF employee until two years later. Perez testified that he had also reported his injury and the incident to a company claims manager, who advised him to wait to submit a claim.
Perez sought treatment for leg and back injuries from his primary care physician and an orthopedic specialist but did not inform BNSF about the treatment until two years after his injury, when he sought a release for back surgery, which was scheduled for the next day. He and his union representative met with the yard foreman, who asked if Perez had informed anyone about the back injury. The foreman stated that the doctor Perez had reported the injury to was not a company doctor, and the claims manager gave a conflicting version of the conversation he and Perez had had two years earlier.
BNSF sent Perez a notice of investigation a month later informing him that the investigation was prompted by an allegation of late reporting of a back injury and an allegation of dishonesty based on Perez’s assertion that the claims manager refused to take his statement. At the close of the investigation, the manager in charge of the company’s discipline policy recommended no discipline, and Perez returned to work having lost no pay, seniority, or benefits.
Citing the ARB’s decision in Vernace, the ALJ rejected BNSF’s claim that an investigation that does not result in discipline is not an adverse action, and held that BNSF’s investigation of Perez was retaliatory and constituted an actionable adverse employment action.
On appeal, the ARB held that a disciplinary charge and related investigation alone do not automatically constitute actionable adverse actions. Investigations may be adverse actions when those investigations are retaliatory, pretextual, performed in bad faith, or harassing. And an investigation might be an adverse action where it accompanies other material consequences that could affect an employee’s terms and conditions of employment or that might otherwise dissuade a reasonable employee from engaging in protected activity.
In remanding the case to the ALJ, the ARB directed the ALJ to determine whether BNSF’s investigation was bad-faith harassment, or if instead, it had been a good-faith, routine investigation to determine whether a violation of the company’s policies had occurred. Where a disciplinary investigation was retaliatory, harassing, and made in bad faith, a court may find that the investigation is an actionable adverse action.
=='''Affirmative Defense for Rail Carriers in FRSA Whistleblower Retaliation Cases'''==
A rail carrier can escape liability if it demonstrates by clear and convincing evidence it would have taken the adverse action absent protected activity.
A key method to prove the same-decision affirmative defense is comparator evidence. But FRSA whistleblower should scrutinize such evidence carefully to test whether it is truly relevant. For example, if a rail carrier terminates a whistleblower for discrepancies in the whistleblower’s protected disclosure, evidence of discipline for patently and materially false hearing testimony is not relevant.
It is also important to consider “the proportional relationship between the adverse actions and the bases for the actions.” See Speegle v. Stone & Webster Constr., Inc., ARB Case No. 13-074, 2014 WL 1758321, at *7 (Dep’t of Labor Admin. Review Bd. Apr. 25, 2014).
=='''Damages and Remedies for FRSA Whistleblowers'''==
A prevailing whistleblower can obtain a wide range of remedies, including: (1) reinstatement, (2) back pay, (3) compensatory damages, (4) attorney fees and litigation costs; and (5) punitive damages up to $250,000.
In 2017, the First Circuit affirmed an award of $250,000 in punitive damages, the maximum amount that the FRSA allows, where rail carrier Pan Am “utilized the [disciplinary] process to intimidate and discourage protected activity.” Pan Am Railways, Inc. v. United States Department of Labor, ___ F.3d ___, 2017 U.S. App. LEXIS 7047 (1st Cir. April 21, 2017). In that case, the ALJ specifically found that Pan Am had willfully retaliated against the whistleblower for filing an OSHA complaint and that it had “consciously disregarded Raye’s statutorily-protected rights under the FRSA, and in fact intentionally interfered with the exercise of those rights.”
=='''FRSA Statute of Limitations'''==
The statute of limitations to file a FRSA whistleblower retaliation claim is 180 days. As the Third Circuit held in Guerra v. Consolidated Rail Corporation, Court of Appeals, No. 18-2471, (3rd Cir. 2019, the FRSA’s statute of limitations is a nonjurisdictional claim-processing rule. However, failing to file within the statute of limitations will likely result in the dismissal of the claim.
=='''Demonstrating a Protected Disclosure'''==
A September 2021 Second Circuit decision in Ziparo v. CSX Transportation, Inc., 20-1196-cv (2d Cir. Sept 24, 2021) holds that complaints of stressful and distracting work conditions may well fall within the scope of “hazardous safety or security condition[s]” under § 20109(b)(1)(A). The court also held that “a railroad employee engages in protected activity under § 20109(b)(1)(A) when she reports what she subjectively believes to be a hazardous safety or security condition irrespective of whether that understanding is objectively reasonable.”
=='''National Transit Systems Security Act'''==
In August 2007, President Bush signed The Implementing Recommendations of the 9/11 Commission Act of 2007 ("9/11 Act"). The 9/11 Act includes ''''The National Transit Systems Security Act of 2007''' (NTSSA), which provides whistleblower protection to public transportation employees who disclose information about perceived violations of federal law concerning public transportation.
=='''Protected Activities Under NTSSA'''==
An employee engages in protected activity by:
*Reporting a hazardous safety or security condition
*Refusing to work when confronted by a hazardous safety or security condition
*Refusing to authorize the use of any safety or security related equipment, track or structures under hazardous conditions
*Providing information or assisting an investigation regarding conduct that the employee reasonably believes constitutes a violation of Federal law relating to public transportation safety or security, fraud, waste or abuse of federal grants or other funds intended to be used for public transportation safety or security
*Being perceived by the employer to have engaged in the protected activity
*Refusing to violate a federal law
*Refusing to assist the violation of a federal law
*Filing an employee protection complaint under NTSSA
*Cooperating with a safety or security investigation conducted by the DOT, DHS or NTSB
*Furnishing information to the DOT, DHS, NTSB or any federal, state, or local law enforcement agency regarding an accident resulting in death or injury to a person in connection with public transportation.
An ''''employee need not prove that his disclosure is correct.''' Instead, the NTSSA whistleblower protection statute applies a "reasonable belief" standard. Under that standard, a reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of the enumerated transportation safety laws is protected. To determine whether the employee's disclosure is objectively reasonable, the fact finder considers whether a reasonable person with the employee's training and experience would reasonably believe that the employer was violating the relevant law or regulation.
=='''Prohibited Adverse Actions'''==
NTSSA prohibits an employer from discriminating against employees because of their whistleblowing activities. This includes:
*intimidation
*blacklisting
*termination
*suspension
*demotion
*reduction in salary
*failure to hire
*harassment
=='''Burden of Proof in An NTSSA Case'''==
To prevail in an NTSSA case, an employee must establish that he engaged in a protected activity and that the protected activity was a contributing factor in the unfavorable personnel action. If the employee successfully establishes that his protected activity was a contributing factor to the adverse action, he will win unless an employer can prove by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.
=='''Remedies Available for a Prevailing Employee'''==
A prevailing employee is entitled to reinstatement, back pay, and compensatory damages. In addition, a prevailing employee can recover exemplary or punitive damages up to $250,000.
=='''Procedure for filing a NTSSA retaliation complaint'''==
Employees who believe they were subjected to retaliation for reporting alleged violations of the NTSSA may file a complaint with the Department of Labor within 180 days of the employee becoming aware of the retaliatory action. OSHA investigates the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA's determination by requesting a de novo hearing before a DOL Administrative Law Judge. If DOL does not issue a final decision within 210 days of the employee filing the complaint, the employee can remove the complaint to a federal district court.
=='''Consumer Product Safety Improvement Act'''==
Prompted by concerns of lead-laden children’s toys and insufficient regulation of consumer product safety, consumer product safety, Congress enacted the Consumer Product Safety Improvement Act of 2008 (CPSIA) on August 14, 2008. The CPSIA strengthens the authority of the CPSC and imposes new certification requirements on manufacturers and distributors.
To ensure that workers can blow the whistle on consumer product safety issues, Congress included in the CPSIA a whistleblower protection provision that prohibits manufacturers, private labelers, distributors, and retailers from retaliating against an employee because the employee provided information to an employer, a regulatory agency, or a state attorney general about a reasonably perceived violation of any law enforced by the CPSC. The regulations implementing the CPSC whistleblower protection law are available by clicking here.
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).
=='''Protected Whistleblowing Under the Consumer Product Safety Improvement Act'''==
The [https://uscode.house.gov/view.xhtml?req=(title:15%20section:2087%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section2087)&f=treesort&edition=prelim&num=0&jumpTo=true CPSIA] prohibits an employer from terminating or otherwise discriminating against an employee because the employee:
#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;
#testified, assisted, or participated in a proceeding concerning a violation of a CPSC rule or regulation, or
#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.
=='''Prohibited Retaliation by the Consumer Product Safety Whistleblower Law'''==
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.
=='''Causation Standard Under the CPSIA'''==
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.
=='''Remedies or Damages Available to Consumer Product Safety Whistleblowers'''==
“Make whole” relief includes:
*reinstatement,
*back pay,
*uncapped compensatory damages,
*attorney fees and litigation costs, including expert witness fees.
=='''How to File a CPSIA Whistleblower Retaliation Action'''==
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.
=='''Food Safety Modernizations Act'''==
The FDA Food Safety Modernization Act (FSMA), which imposes stricter food safety standards and grants the Food and Drug Administration greater authority to regulate tainted food, includes a whistleblower protection provision. The FMSA was prompted in part by numerous instances of fatal food contamination that revealed insufficient regulation and oversight of food production, including outbreaks of contaminated peanuts, eggs, and produce. The Centers for Disease Control and Prevention estimate that there are 76 million cases of foodborne disease each year in the United States, 5,000 of which result in death.
To ensure that workers can disclose food safety concerns without fear of reprisal, Congress included in the FMSA a robust whistleblower protection provision (Section 402) that protects workers engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. The bill must be reconciled with a House version of the bill, H.R. 2749, which passed on July 30, 2009, and final passage is expected to occur by the end of the year.
Section 402 applies to any entity “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”
=='''Broad Scope of Protected Conduct'''==
The FSMA prohibits retaliation against an employee who has:
#Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
#Testified or is about to testify in a proceeding concerning such violation;
#Assisted, participated or is about to assist or participate in such a proceeding; or
#Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.
A Section 402 complainant need not demonstrate that she disclosed an actual violation of a food safety law or regulation. Instead, Section 402 employs a “reasonable belief” standard that the Department of Labor (DOL) and federal courts have construed as protecting a reasonable but mistaken belief that an employer may have violated a particular law. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th Cir. 2009) (“to encourage disclosure, Congress chose statutory language which ensures that an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected.”) (internal quotation, citation omitted); Allen v. Admin. Review Bd., 514 F. 3d 468, 477 (5th Cir. 2008) (applying “reasonable belief” standard in a Sarbanes-Oxley whistleblower retaliation action); Kalkunte v. DVI Fin. Svcs., Inc., ARB Nos. 05-139 & 05-140, 2004-SOX-056 (ARB Feb. 27, 2009) (clarifying that a reasonable but mistaken belief is protected under SOX). The reasonable belief standard consists of both a subjective and objective component, and objective reasonableness “is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.” Allen, 514 F.3d at 477.
The “duty speech” doctrine will not apply to FSMA retaliation claims, as the text specifically protects disclosures made “in the ordinary course of the employee’s duties.”
Some examples of protected conduct include the following:
#Reporting that imported cheese is being stored at the wrong temperature and is therefore susceptible to spoiling or containing harmful bacteria;
#Reporting that an additive harmful only to infants was added to infant formula;
#Reporting that bread is being stored in a facility infested with flies and rodents;
#Reporting that a peanut butter manufacturer did not recall peanut butter it knew might have been made using a batch of contaminated peanuts; and
#Reporting that a chemical used to lubricate sorting machines has contaminated dietary supplements.
=='''Prohibited Whistleblower Retaliation'''==
An employer is prohibited from discharging or “in any manner discriminat[ing] against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment.” The DOL’s Administrative Review Board (ARB) applies the Burlington Northern standard to analogous whistleblower protection statutes, and therefore Section 402 will prohibit not only tangible adverse actions, but also any action that may dissuade a reasonable employee from engaging in further protected activity. See Melton v. Yellow Transp. Inc., ARB No. 06-052, 05-140, ALJ No. 2005-STA-002 (ARB Sept. 30, 2008) (holding that the Burlington Northern standard applies to whistleblower retaliation claims before the DOL).
Prohibited acts of retaliation will likely include:
*termination
*suspension
*demotion
*reduction in pay
*failure to promote
*failure to hire
*diminution in job duties
*blacklisting
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