ARB Adopts Expansive View of Protections Afforded Whistleblowers Under the Consumer Product Safety Improvement Act, Continuing Recent Trends in Whistleblower Cases

The Administrative Review Board (“ARB”) on March 28, 2012 held that the whistleblower protection provisions of the Consumer Product Safety Improvement Act of 2008 (“CPSIA” or “Act”) are not limited to those who raise concerns only as to a “consumer product” as defined in the Act, but extends to any matter falling within the jurisdiction of the Consumer Product Safety Commission. Saporito v. Publix Super Markets, Inc., ARB Case No. 10-073. The ARB has thereby significantly expanded the number of manufacturers, distributors and retailers whose employees enjoy the whistleblower protections of the CPSIA.

Complainant Had Alleged Improper Handling of Food Products Specifically Excluded from CPSIA Coverage, Resulting in Dismissal of His Complaints Before OSHA and the ALJ

Complainant Thomas Saporito had been a Maintenance Technician in the dairy production area of a facility operated by Respondent. Claiming that he had been subjected to a hostile work environment and eventually terminated in retaliation for having complained to supervisors about potential contamination of milk products, Saporito sued under the CPSIA’s whistleblower protection provision, 15 U.S.C. § 2087.

The Occupational Safety & Health Administration (“OSHA”) declined to investigate Saporito’s claim, noting that food products are expressly excluded from the definition of a “consumer product” under the CPSIA and therefore outside the scope of the CPSIA. The Administrative Law Judge (“ALJ”) agreed with OSHA, holding that Saporito’s claims involved matters regulated by the Food & Drug Administration and were therefore not covered under CPSIA.       

ARB Rejects View that CPSIA Covers Only “Consumer Products”

The ARB held that OSHA and the ALJ were wrong to suggest that the CPSIA is limited to concerns about consumer products alone. The ARB began with the premise that among the Act’s “expressed ‘purposes’ is to ‘protect the public against unreasonable risks of injury associated with consumer products.’” In furtherance of those purposes, Congress had established the Consumer Product Safety Commission (“Commission”). That food products are specifically excluded from the CPSIA’s definition of “consumer products” did not bar Saporito’s claims, reasoned the ARB, because the Act’s whistleblower provisions extend not only to reported violations of the CPSIA itself, but also to reported violations of “any other Act enforced by the Commission.” Observing that the Commission is also charged with enforcement of such statutes as the Federal Hazardous Substances Act and the Poison Prevention Packaging Act, the ARB concluded that “[c]learly, the Commission’s power extends beyond regulation of ‘consumer products.’” The ARB therefore held that Saporito’s CPSIA claims could proceed. 

Saporito Decision Continues ARB’s Expansion of Whistleblower Protections, and Offers Alternate Avenue to Whistleblowers under the 2011 Food Safety Modernization Act

Saporito stands as another in a growing line of recent ARB decisions expanding the protections afforded whistleblowers under the twenty-one statutes administered by OSHA’s Whistleblower Protection Program. In particular, and as discussed in some of our recent postings, the ARB has greatly expanded the scope of protections available under the Sarbanes-Oxley Act of 2002 through its decisions in Brown v. Lockheed Martin Corp. (February 2011), Sylvester v. Parexel International, LLC (May 2011), and Zinn v. American Commercial Lines Inc. (March 2012). The Saporito decision continues this trend – and indeed, the ARB hinted at the possibility that it might soon extend its groundbreaking Sylvester holding beyond the Sarbanes-Oxley context. 

Equally noteworthy, the Saporito decision provides would-be whistleblowers in the food industry with supplemental protections to those afforded them under the FDA Food Safety Modernization Act (“FSMA”), Pub. Law 111-353, signed by President Obama in January 2011. Section 402 of the FSMA created a cause of action for food industry workers who suffer retaliation for reporting violations of the FSMA’s food safety standards. 21 U.S.C. § 399d.  The FSMA was not in effect when Saporito brought his claims under the CPSIA in September 2008. But by holding that the CPSIA extends to reported violations of food safety standards, the ARB has now created multiple layers of protection for food industry whistleblowers and further demonstrated its tendency to espouse a broad and expansive view of whistleblower protections generally. 

It remains to be seen if the ARB’s extremely expansive interpretation of various whistleblower protection statutes will pass muster as employers seek court review of principles announced in these recent decisions, and there appear to be ample grounds to question the current ARB’s fidelity to both statutory text and Congressional intent. But for the time being at least, it can be fully anticipated that this expansive approach to whistleblower protections will find its place in the ARB’s future whistleblower jurisprudence.

Food Safety and Whistleblowing - New Federal Law May Deliver a Full Basket of Claims

By Allen B. Roberts and John Houston Pope

With virtually no fanfare, a major sector of the American workforce – those who handle food – won whistleblower protections under the FDA Food Safety Modernization Act (“FSMA”), Pub. L. No. 111-353. The Food and Drug Administration (“FDA”) describes FSMA, signed into law on January 4, 2011, as improving food safety by preventing hazards “from farm to table” and making “everyone in the global food chain responsible for safety.”

While much attention and controversy surrounded the whistleblower bounty awards of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) enacted in July 2010, the potentially more significant whistleblower provision of FSMA passed in the final days of the 2010 legislative session in routine and undramatic fashion. Indeed, the most significant whistleblower portions of the bill did not emerge until a version of the bill was reported out of a Senate committee in mid-November. (No written report explained the major changes written into the law.) Because of the sheer size of the workforce that touches food and the comprehensive definition of “protected activity,” however, the relatively unheralded law extends coverage and companion employer obligations in potentially unprecedented measure. The claims that result could dwarf those arising under whistleblower laws receiving far more media and business attention.

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