The U.S. 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 the 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 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 U.S. Occupational Safety and 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 U.S. Food and Drug Administration and were therefore not covered under the CPSIA.