By James L. Curtis, Ada W. Dolph, and Craig B. Simonsen
OSHA announced on April 3, 2014 its “Procedures for Handling Retaliation Complaints Under the Employee Protection Provision of the Consumer Financial Protection Act of 2010,” 79 Fed. Reg. 18630 (April 3, 2014).
The Consumer Financial Protection Act of 2010 (CFPA) is intended to protect employees against retaliation by employers that offer or provide consumer financial products or services, such as residential mortgages, mortgage loan modification and foreclosure relief services, private education loans, payday loans, consumer credit, and debt relief services. The CFPA is part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 12 U.S.C.A. §5567.
This new OSHA interim final rule establishes procedures, burdens of proof, remedies, and statutes of limitations similar to other whistleblower protection statutes that OSHA administers. We had previously blogged about the OSHA rules for whistleblower protections under the Food Safety Modernization Act and The Affordable Care Act. OSHA has also made the complaint filing procedures “easier” through the establishment of an online complaint filing form.
The CFPA prohibits retaliation against “covered employee” for engaging in “protected activity.” A covered employer includes “any person that engages in offering or providing a consumer financial product or service” including “any affiliate of [such] … if [the] affiliate acts as a service provider to such person.” A “covered employee” includes “any individual performing tasks related to the offering or provision of a consumer financial product or service.”
Under the new rules, an employee or her representative, who believes that she has been retaliated against in violation of CFPA, may file a complaint with OSHA. Complaints must be filed within 180 days after the alleged retaliatory action. If after its investigation OSHA decides that the evidence supports the employee’s claim of retaliation, OSHA may issue an order requiring the employer to put the employee back to work, pay lost wages, restore benefits, and provide other relief, as appropriate. After OSHA issues a decision, the employer or the employee may request a full hearing before an administrative law judge. A final decision by an administrative law judge may then be appealed to the Administrative Review Board. The employee may also file a complaint in federal court if the Department of Labor does not issue a final decision within certain time limits.
These new procedural rules are in line with those applied to other whistleblower protections that fall under OSHA’s authority. They, along with the broad scope of the protections under the CFPA, can cause major problems for unguarded employers. As always, an effective internal reporting and compliance program can help prevent or minimize the risk.
The interim rule is effective on April 3, 2014, with comments submitted to Docket No. OSHA–2011–0540 due by June 2, 2014.
For more information, please contact a member of the Whistleblower team or your favorite Seyfarth attorney.