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Section 219 of the Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314
(To be codified at 15 U.S.C. §2087)
SEC. 219. WHISTLEBLOWER PROTECTIONS.
(a) IN GENERAL. The Act (15 U.S.C. 2051 et seq.), as amended by section 206
of this Act, is further amended by adding at the end the following:
"WHISTLEBLOWER PROTECTION
"SEC. 40.
(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 the employee's duties (or any person acting pursuant
to a request of the employee)
"(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 Act or any other Act
enforced by the Commission, or any order, rule, regulation, standard, or ban under
any such Acts;
"(2) testified or is about to testify in a proceeding concerning such violation;
"(3) assisted or participated or is about to assist or participate in such a
proceeding; or
"(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 Act or any other Act enforced by the
Commission, or any order, rule, regulation, standard, or ban under any such Acts.
"(b)
(1) A person who believes that he or she has been discharged or otherwise
discriminated against by any person in violation of subsection (a) may, not later
than 180 days after the date on which such violation occurs, file (or have any
person file on his or her behalf) a complaint with the Secretary of Labor alleging
such discharge or discrimination and identifying the person responsible for such
act. Upon receipt of such a complaint, the Secretary shall notify, in writing, the
person named in the complaint of the filing of the complaint, of the allegations
contained in the complaint, of the substance of evidence supporting the complaint,
and of the opportunities that will be afforded to such person under paragraph (2).
"(2)
(A) Not later than 60 days after the date of receipt of a complaint filed
under paragraph (1) and after affording the complainant and the person
named in the complaint an opportunity to submit to the Secretary a written
response to the complaint and an opportunity to meet with a
representative of the Secretary to present statements from witnesses, the
Secretary shall initiate an investigation and determine whether there is
reasonable cause to believe that the complaint has merit and notify, in
writing, the complainant and the person alleged to have committed a
violation of subsection (a) of the Secretary's findings. If the Secretary
concludes that there is reasonable cause to believe that a violation of
subsection (a) has occurred, the Secretary shall accompany the
Secretary's findings with a preliminary order providing the relief prescribed
by paragraph (3)(B). Not later than 30 days after the date of notification of
findings under this paragraph, either the person alleged to have committed
the violation or the complainant may file objections to the findings or
preliminary order, or both, and request a hearing on the record. The filing of
such objections shall not operate to stay any reinstatement remedy
contained in the preliminary order. Any such hearing shall be conducted
expeditiously. If a hearing is not requested in such 30-day period, the
preliminary order shall be deemed a final order that is not subject to
judicial review.
"(B)
(i) The Secretary shall dismiss a complaint filed under this
subsection and shall not conduct an investigation otherwise
required under subparagraph (A) unless the complainant makes a
prima facie showing that any behavior described in paragraphs (1)
through (4) of subsection (a) was a contributing factor in the
unfavorable personnel action alleged in the complaint.
"(ii) Notwithstanding a finding by the Secretary that the
complainant has made the showing required under clause (i), no
investigation otherwise required under subparagraph (A) shall be
conducted if the employer demonstrates, by clear and convincing
evidence, that the employer would have taken the same
unfavorable personnel action in the absence of that behavior.
"(iii) The Secretary may determine that a violation of subsection
(a) has occurred only if the complainant demonstrates that any
behavior described in paragraphs (1) through (4) of subsection (a)
was a contributing factor in the unfavorable personnel action
alleged in the complaint.
"(iv) Relief may not be ordered under subparagraph (A) if the
employer demonstrates by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action
in the absence of that behavior.
"(3)
(A) Not later than 120 days after the date of conclusion of any hearing
under paragraph (2), the Secretary shall issue a final order providing the
relief prescribed by this paragraph or denying the complaint. At any time
before issuance of a final order, a proceeding under this subsection may
be terminated on the basis of a settlement agreement entered into by the
Secretary, the complainant, and the person alleged to have committed the
violation.
"(B) If, in response to a complaint filed under paragraph (1), the Secretary
determines that a violation of subsection (a) has occurred, the Secretary
shall order the person who committed such violation
"(i) to take affirmative action to abate the violation;
"(ii) to reinstate the complainant to his or her former position
together with compensation (including back pay) and restore the
terms, conditions, and privileges associated with his or her
employment; and
"(iii) to provide compensatory damages to the complainant. If such
an order is issued under this paragraph, the Secretary, at the
request of the complainant, shall assess against the person
against whom the order is issued a sum equal to the aggregate
amount of all costs and expenses (including attorneys' and expert
witness fees) reasonably incurred, as determined by the
Secretary, by the complainant for, or in connection with, the
bringing of the complaint upon which the order was issued.
"(C) If the Secretary finds that a complaint under paragraph (1) is frivolous
or has been brought in bad faith, the Secretary may award to the prevailing
employer a reasonable attorneys' fee, not exceeding $1,000, to be paid by
the complainant.
"(4) If the Secretary has not issued a final decision within 210 days after the filing
of the complaint, or within 90 days after receiving a written determination, the
complainant may bring an action at law or equity for de novo review in the
appropriate district court of the United States with jurisdiction, which shall have
jurisdiction over such an action without regard to the amount in controversy, and
which action shall, at the request of either party to such action, be tried by the
court with a jury. The proceedings shall be governed by the same legal burdens of
proof specified in paragraph (2)(B). The court shall have jurisdiction to grant all
relief necessary to make the employee whole, including injunctive relief and
compensatory damages, including
"(A) reinstatement with the same seniority status that the employee would
have had, but for the discharge or discrimination;
"(B) the amount of back pay, with interest; and
"(C) compensation for any special damages sustained as a result of the
discharge or discrimination, including litigation costs, expert witness fees,
and reasonable attorneys' fees.
"(5)
(A) Unless the complainant brings an action under paragraph (4), any
person adversely affected or aggrieved by a final order issued under
paragraph (3) may obtain review of the order in the United States Court of
Appeals for the circuit in which the violation, with respect to which the
order was issued, allegedly occurred or the circuit in which the
complainant resided on the date of such violation. The petition for review
must be filed not later than 60 days after the date of the issuance of the
final order of the Secretary. Review shall conform to chapter 7 of title 5,
United States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court, operate as a stay of
the order.
"(B) An order of the Secretary with respect to which review could have
been obtained under subparagraph (A) shall not be subject to judicial
review in any criminal or other civil proceeding.
"(6) Whenever any person has failed to comply with an order issued under
paragraph (3), the Secretary may file a civil action in the United States district
court for the district in which the violation was found to occur, or in the United
States district court for the District of Columbia, to enforce such order. In actions
brought under this paragraph, the district courts shall have jurisdiction to grant all
appropriate relief including, but not limited to, injunctive relief and compensatory
damages.
"(7)
(A) A person on whose behalf an order was issued under paragraph (3)
may commence a civil action against the person to whom such order was
issued to require compliance with such order. The appropriate United
States district court shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such order.
"(B) The court, in issuing any final order under this paragraph, may award
costs of litigation (including reasonable attorneys' and expert witness fees)
to any party whenever the court determines such award is appropriate.
"(C) Any nondiscretionary duty imposed by this section shall be enforceable
in a mandamus proceeding brought under section 1361 of title 28, United States Code.
"(D) Subsection (a) shall not apply with respect to an employee of a
manufacturer, private labeler, distributor, or retailer who, acting without
direction from such manufacturer, private labeler, distributor, or retailer (or
such person's agent), deliberately causes a violation of any requirement
relating to any violation or alleged violation of any order, regulation, or
consumer product safety standard under this Act or any other law
enforced by the Commission."
(b) CONFORMING AMENDMENT.The table of contents, as amended by section 206 of this Act,
is further amended by inserting after the item relating to section 39 the following:
"Sec. 40. Whistleblower protection.".
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