Question of the Week #5

NEW TO OUR BLOG – A FEATURE WE CALL OUR QUESTION OF THE WEEK

We will be putting up a consumer product safety question each week or so. The answers will be forthcoming the following week along with a new question. Check back frequently and let us know if you have a question.

We recently posed Question #4:

What are the new whistleblower provisions of the CPSIA and how might they affect my company?

Response:

The Consumer Product Safety Improvement Act (CPSIA) at Section 219 establishes new whistleblower protections for employees of manufacturers, private labelers, distributors, or retailers of consumer products. An employee is protected from termination, discharge or any other form of retaliation resulting from the employee’s provision to the employer, the Federal Government, or a State Attorney General of information relating to any violation of statutes or regulations enforced by the CPSC.

The whistleblower provision of the CPSIA prohibits an employer from discharging or otherwise discriminating against an employee because the employee: (1) provides information relating to a violation of the CPSIA or any act enforced by the CPSC to the employer, the Federal Government, or the State Attorney general; (2) testifies or assists in a proceeding concerning a violation of the CPSIA or any act enforced by the Commission; or (3) refuses to participate in an activity, policy, practice, or assigned task that the employee reasonably believes violates the CPSIA or any act enforced by the Commission.

The whistleblower protections do not extend to government employees.

An employee who believes he or she has suffered an adverse employment action as a result of the employee’s provision of information relating to a violation of statutes or regulations enforced by the CPSC may file a complaint with the Secretary of the U.S. Department of Labor. A complaint setting forth the facts and identifying the responsible party must be filed with the Secretary no later than 180 days after the date on which the violation occurs.

The Secretary has an elaborate set of procedures for the complainant to file a complaint and for the employer to respond. To prevail in a CPSC whistleblower action, an employee must prove by a preponderance of the evidence that the protected activity was a contributing factor in the adverse employment action.

If the Secretary of Labor finds a violation by the employer, the remedies may include: (1) abatement of the violation; : (2) reinstatement; (3) back pay; (4) compensatory damages; and (5) attorney fees and litigation costs, including expert witness fees reasonably incurred. If the Secretary finds that the complaint was frivolous or brought in bad faith, the Secretary may award the employer reasonable attorney’s fees not exceeding $1,000. The law provides a judicial mechanism for review and enforcement of the parties’ rights.

The new CPSIA whistleblower provisions became effective on August 14, 2008.

Now for this weeks new Question of the Week #5

Does the CPSC regulate products that contain nanotechnology?

Check back with us next week for our response. Also, let us know what you think of our blog and questions you may have about consumer product safety. MRK

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