5 Indispensable Things Consumer Products Whistleblowers Need To KnowJanuary 13, 2021
The consumer products industry is sprawling and countless employees play a pivotal role in making sure products —ranging from toys to coffee makers to power tools — do not pose a threat to people using them. A relatively unsung law, the Consumer Safety Products Improvement Act (CPSIA), 15 U.S.C. § 2087, provides crucial protection against retaliation for whistleblowers.
The CPSIA mandates that consumer product companies cannot retaliate against employees who report concerns about safety issues and other potential violations of the Consumer Product Safety Act (CPSA).
If you are considering blowing the whistle about a consumer product, here are 5 essential facts about whistleblower rights under the CPSIA:
What legal standard applies in CPSIA cases?
The CPSIA, which amended the CPSA to provide protection from retaliation for whistleblowers, provides in relevant part that:
(a) No manufacturer, private labeler, distributor, or retailer, may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative or in the ordinary course of employee’s duties . . .—
(1) 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 chapter or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts [. . . .]
(4) 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 chapter or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under such Acts
15 U.S.C. § 2087 (alterations added).
The CPSIA whistleblower statute sets forth the same elements of a retaliation claim as other whistleblower statutes: (1) protected activity; (2) unlawful discrimination; and (3) a causal link between the protected activity and the unlawful discrimination. 15 U.S.C.A. § 2087(b)(2)(B)(i)-(iv); 29 C.F.R. § 1983.109(a).” Precedent related to other whistleblower statutes, including the anti-retaliation provisions of the Sarbanes-Oxley Act, are thus applicable to CPSIA claims.
Put simply, this means that an employee must show only that their whistleblowing activity was a “contributing factor” in the company’s decision to retaliate against them. If this is proven, then the company will be liable for retaliation unless it can show by “clear and convincing” evidence that it would have taken the same action against the employee absent their protected disclosures.