The Occupational Safety & Health Administration (“OSHA”) issued an interim final rule on April 3, 2014 establishing procedures for employee complaints of retaliation under the whistleblower provisions of the Consumer Financial Protection Act of 2010 (“CFPA”). Though this interim final rule is still open to public comment, it is effective immediately and therefore it is important for employers in the consumer financial products and service industries to be aware of the substantive protections and procedural mechanisms that mirror the other whistleblower regulations that OSHA promulgates. OSHA now has responsibility for the oversight and enforcement of the whistleblower provisions of the CFPA as well as twenty-one other statutes that protect employees from retaliation for reporting violations of various workplace, environmental, consumer protection, and commercial transportation regulations.
The CFPA – Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 – established whistleblower protections and created the Bureau of Consumer Financial Protection (the “Bureau”). Under the CFPA, covered employees in the consumer financial product and service industries are protected from retaliation for reporting violations of the CFPA or any other statutory provision under the jurisdiction of the Bureau. Covered employers include those engaged in offering or providing a financial service and any affiliate that acts as a service provider to the employer. Protected activity covers a wide variety of actions, including providing information regarding any violation of the CFPA or related law to the Bureau, state or local authority, or employer; testifying in or instituting proceedings under the CFPA provisions; or refusing to take part in conduct that the employee reasonably believes violates these provisions. Reasonable belief under the CFPA requires the complainant to have both a subjective good-faith belief as well as an objectively reasonable belief that the reported conduct violates the CFPA. Retaliation under the CFPA is not limited to termination and can include other adverse employment actions, including reduction in pay or hours, denial of benefits, discipline, reassignment, and demotion. A complainant has the initial burden of establishing that the protected activity was a “contributing factor” in the retaliatory action. In order to rebut this allegation, an employer must show by clear and convincing evidence that it would have taken the adverse employment action regardless of the engaged in protected activity. Employers should be aware that the barriers to filing a complaint appear to be extremely low and a wide variety of employee actions can initiate the complaint process.
New Procedural Provisions
The interim regulations implement procedures for the retaliation complaint process and cover the filing of the complaint, the OSHA investigation, appeals to and hearings by an Administrative Law Judge, as well as subsequent judicial review. Complaints must be filed within 180 days of the alleged retaliatory action and an employee or a person acting on behalf of the employee may file the complaint directly with OSHA. The interim rule allows for complaints to be submitted in any language either in writing or orally. Within 60 days of the filing of the complaint, OSHA is required to issue its findings. Any objections to the findings must be filed within 30 days with the chief Administrative Law Judge. Further review can be sought by petitioning the Administrative Review Board as well as through an appeal seeking judicial review. Finally, a whistleblower may file a new complaint with a district court within 90 days of receiving a written determination or if a final decision has not been issued within 210 days of filing the complaint.
As the interim final rule is still open to public comment, comments may be submitted electronically here, the Federal eRulemaking Portal, via mail or facsimile. See the Federal Register notice for details. Comments must be submitted by June 2, 2014.