The Department of Labor today issued final regulations for handling whistleblower complaints under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. On behalf of the National Whistleblowers Center (NWC), I submitted comments on the proposed regulations in 2010. Today, DOL adopts some of my recommendations, and adopts a change in response to another recommendation. DOL also added a new change that was not in the interim regulations, and is worthy of objection. Specifically, DOL is making explicit that Administrative Law Judges (ALJs) may limit discovery to expedite a whistleblower case. 29 CFR § 1983.107(b). This provision could be used to deny whistleblowers the full opportunity to obtain the discovery that would win their cases. In cases where discovery is necessary, for example, to show that the employer’s stated reasons are pretextual, the whistleblower would likely waive the time limits for adjudication so that discovery can be completed. It is unfortunate that DOL is adding this unnecessary line that would work a disservice to the whistleblowers who have a hard enough time proving their cases.
Helpfully, DOL now provides in 29 CFR § 1983.104(c) that complaints or their attorneys should receive employer submissions (except for material protected by confidentiality laws), and should have an opportunity to respond. At page 40497 of the summary, OSHA states that it agrees with the comments about the importance of keeping the complainant informed and giving the complainant an opportunity to help the investigation. On page 40498, OSHA states that it, “anticipates that the vast majority of respondent submissions will not be subject to confidentiality laws.” It also links to the OSHA Whistleblower Investigations Manual where OSHA provides a list of the applicable confidentiality laws. See pages 1-19 to 1-21 for the discussion on confidentiality laws.