Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Occupational Safety and Health Administration has issued an interim final rule and request for comments on the procedures for handling retaliation complaints under the employee protection provision of the Consumer Financial Protection Act (CFPA). OSHA is charged with overseeing and enforcing the whistleblower provisions of 22 separate statutes.
The applicable whistleblower section, which was added by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, provides as follows:
(a) No covered person or service provider shall terminate or in any other way discriminate against, or cause to be terminated or discriminated against, any covered employee or any authorized representative of covered employees by reason of the fact that such employee or representative, whether at the initiative of the employee or in the ordinary course of the duties of the employee (or any person acting pursuant to a request of the employee), has
(1) provided, caused to be provided, or is about to provide or cause to be provided, information to the employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency relating to any violation of, or any act or omission that the employee reasonably believes to be a violation of, any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;
(2) testified or will testify in any proceeding resulting from the administration or enforcement of any provision of this title or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;
(3) filed, instituted, or caused to be filed or instituted any proceeding under any Federal consumer financial law; 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 law, rule, order, standard, or prohibition, subject to the jurisdiction of, or enforceable by, the Bureau.
The interim final rule outlines the steps and procedures OSHA investigators and administrative law judges will take in evaluating and processing whistleblower complaints under this statute. The steps set forth in the rule mirror the regulations OSHA has implemented over the last few years governing other whistleblower statutes under its jurisdiction.
Among other steps common to similar retaliation statutes, a complainant must file a CFPA whistleblower claim with the agency within 180 days of the alleged violation. The pleading standard is lax; the claim does not need to be in any particular form. In fact, oral complaints will suffice.
Under the CFPA, a complainant would need to make an initial showing that the protected activity or disclosure was “a contributing factor” in the adverse employment action. An employer could rebut this allegation by showing, by “clear and convincing evidence,” that it would have taken the same adverse action absent the protected activity.
A whistleblower may file a new complaint in federal court within 90 days of receiving the Assistant Secretary’s written findings and preliminary orders, or if he or she has not received a final decision from the ALJ within 210 days of filing the complaint.
Comments on these regulations may be submitted electronically through the federal eRulemaking portal, or via mail, hand delivery, express mail, messenger or courier service to the OSHA Docket Office, Docket No. OSHA–2011–0540, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210.