Congress Enacts New Whistleblower Law

Last week Congress enacted the Consumer Product Safety Improvement Act of 2008. Among other things, the Act contains a new protection for employees of manufacturers and retailers who do any of the following: (1) provide information to the employer, federal government or attorney general of a state, relating to any violation of the Act or any statutes enforced by the Consumer Product Safety Commission; (2) testify or are about to testify in a proceeding concerning such a violation; (3) assist or participate (or seek to) in such a proceeding; or (4) object to participating in any such activity.

Critically, the employee engaging in whistleblower activity need only have a reasonable belief that a violation has taken place. Under the Act, a whistleblower claim must be filed with the Occupational Health and Safey Administration (“OSHA”) within 180 days of the retaliatory act. Either party can request a hearing before a Department of Labor administrative law judge. If the Department of Labor does not render a final decision within 210 days of the complaint’s filing, the employee can obtain a dismissal of the complaint and file a civil action. In addition to reinstatement, backpay and compensatory costs, a prevailing employee is entitled to attorneys’ fees and costs.

The Act differs from New York’s general whistleblower law in several respects, but mainly in that an employee complaining under the Act need not be certain that there was an actual violation of law. As long as the employee has a good faith or reasonable belief that a violation has occurred, the Act’s whistleblower protection will apply. Under New York law, however, an employee is only protected if he or she complain about an “actual” violation of law that poses a threat to the public health and safety. Consequently, protection under New York law is limited.

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