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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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Presentation on theme: "THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT: WHISTLEBLOWERS KURT STITCHER LEVENFELD PEARLSTEIN, LLC DRI PRODUCT LIABILITY CONFERENCE APRIL 16, 2009."— Presentation transcript:

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

2 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

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

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

5 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.

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

7 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

8 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

9 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.

10 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)

11 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

12 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

13 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

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


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