15 U.S.C. § 2087 — Whistleblower protection

Page 1771 TITLE 15—COMMERCE AND TRADE § 2087 1 So in original. The comma probably should not appear. an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while rid- den by an operator who weighs 170 pounds, is less than 20 mph. (c) Promulgation of requirements To further protect the safety of consumers who ride low-speed electric bicycles, the Com- mission may promulgate new or amended re- quirements applicable to such vehicles as nec- essary and appropriate. (d) Preemption This section shall supersede any State law or requirement with respect to low-speed electric bicycles to the extent that such State law or re- quirement is more stringent than the Federal law or requirements referred to in subsection (a). (Pub. L. 92–573, § 38, as added Pub. L. 107–319, § 1, Dec. 4, 2002, 116 Stat. 2776.) Editorial Notes REFERENCES IN TEXT Section 2052(a)(1) of this title, referred to in subsec. (a), was redesignated section 2052(a)(5) of this title by Pub. L. 110–314, title II, § 235(b)(4), Aug. 14, 2008, 122 Stat. 3074. § 2086. Prohibition on industry-sponsored travel Notwithstanding section 1353 of title 31 and section 2076(b)(6) of this title, no Commissioner or employee of the Commission shall accept travel, subsistence, or related expenses with re- spect to attendance by a Commissioner or em- ployee at any meeting or similar function relat- ing to official duties of a Commissioner or an employee, from a person— (1) seeking official action from, doing busi- ness with, or conducting activities regulated by, the Commission; or (2) whose interests may be substantially af- fected by the performance or nonperformance of the Commissioner’s or employee’s official duties. (Pub. L. 92–573, § 39, as added Pub. L. 110–314, title II, § 206(a), Aug. 14, 2008, 122 Stat. 3044.) § 2087. Whistleblower protection (a) No manufacturer, private labeler, dis- tributor, or retailer,1 may discharge an em- ployee or otherwise discriminate against an em- ployee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initia- tive or in the ordinary course of the employee’s duties (or any person acting pursuant to a re- quest of the employee)— (1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the at- torney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this chapter or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts; (2) testified or is about to testify in a pro- ceeding concerning such violation; (3) assisted or participated or is about to as- sist or participate in such a proceeding; or (4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) rea- sonably believed to be in violation of any pro- vision of this chapter or any other Act en- forced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts. (b)(1) A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 180 days after the date on which such violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such dis- charge or discrimination and identifying the person responsible for such act. Upon receipt of such a complaint, the Secretary shall notify, in writing, the person named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such per- son under paragraph (2). (2)(A) Not later than 60 days after the date of receipt of a complaint filed under paragraph (1) and after affording the complainant and the per- son named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses, the Secretary shall initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify, in writing, the complainant and the person alleged to have committed a violation of subsection (a) of the Secretary’s findings. If the Secretary concludes that there is reasonable cause to believe that a violation of subsection (a) has occurred, the Sec- retary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by paragraph (3)(B). Not later than 30 days after the date of notification of findings under this paragraph, either the person alleged to have committed the violation or the com- plainant may file objections to the findings or preliminary order, or both, and request a hear- ing on the record. The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any such hearing shall be conducted expeditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. (B)(i) The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under sub- paragraph (A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. (ii) Notwithstanding a finding by the Sec- retary that the complainant has made the show- Page 1772 TITLE 15—COMMERCE AND TRADE § 2087 ing required under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the em- ployer would have taken the same unfavorable personnel action in the absence of that behavior. (iii) The Secretary may determine that a vio- lation of subsection (a) has occurred only if the complainant demonstrates that any behavior de- scribed in paragraphs (1) through (4) of sub- section (a) was a contributing factor in the unfa- vorable personnel action alleged in the com- plaint. (iv) Relief may not be ordered under subpara- graph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable per- sonnel action in the absence of that behavior. (3)(A) Not later than 120 days after the date of conclusion of any hearing under paragraph (2), the Secretary shall issue a final order providing the relief prescribed by this paragraph or deny- ing the complaint. At any time before issuance of a final order, a proceeding under this sub- section may be terminated on the basis of a set- tlement agreement entered into by the Sec- retary, the complainant, and the person alleged to have committed the violation. (B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has occurred, the Sec- retary shall order the person who committed such violation— (i) to take affirmative action to abate the violation; (ii) to reinstate the complainant to his or her former position together with compensa- tion (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and (iii) to provide compensatory damages to the complainant. If such an order is issued under this paragraph, the Secretary, at the request of the complain- ant, shall assess against the person against whom the order is issued a sum equal to the ag- gregate amount of all costs and expenses (in- cluding attorneys’ and expert witness fees) rea- sonably incurred, as determined by the Sec- retary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued. (C) If the Secretary finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary may award to the prevailing employer a reasonable attor- neys’ fee, not exceeding $1,000, to be paid by the complainant. (4) If the Secretary has not issued a final deci- sion within 210 days after the filing of the com- plaint, or within 90 days after receiving a writ- ten determination, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States with jurisdiction, which shall have juris- diction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such ac- tion, be tried by the court with a jury. The pro- ceedings shall be governed by the same legal burdens of proof specified in paragraph (2)(B). The court shall have jurisdiction to grant all re- lief necessary to make the employee whole, in- cluding injunctive relief and compensatory dam- ages, including— (A) reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination; (B) the amount of back pay, with interest; and (C) compensation for any special damages sustained as a result of the discharge or dis- crimination, including litigation costs, expert witness fees, and reasonable attorney’s fees. (5)(A) Unless the complainant brings an action under paragraph (4), any person adversely af- fected or aggrieved by a final order issued under paragraph (3) may obtain review of the order in the United States Court of Appeals for the cir- cuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. Review shall conform to chapter 7 of title 5. The commencement of proceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the order. (B) An order of the Secretary with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding. (6) Whenever any person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appro- priate relief including, but not limited to, in- junctive relief and compensatory damages. (7)(A) A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States dis- trict court shall have jurisdiction, without re- gard to the amount in controversy or the citi- zenship of the parties, to enforce such order. (B) The court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorneys’ and expert wit- ness fees) to any party whenever the court de- termines such award is appropriate. (c) Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus pro- ceeding brought under section 1361 of title 28. (d) Subsection (a) shall not apply with respect to an employee of a manufacturer, private label- er, distributor, or retailer who, acting without direction from such manufacturer, private label- er, distributor, or retailer (or such person’s agent), deliberately causes a violation of any re- quirement relating to any violation or alleged violation of any order, regulation, or consumer product safety standard under this chapter or any other law enforced by the Commission. (Pub. L. 92–573, § 40, as added Pub. L. 110–314, title II, § 219(a), Aug. 14, 2008, 122 Stat. 3062.) Page 1773 TITLE 15—COMMERCE AND TRADE § 2089 § 2088. Financial responsibility (a) Identification and determination of bond The Commission, in consultation with U.S. Customs and Border Protection and other rel- evant Federal agencies, shall identify any con- sumer product, or other product or substance that is regulated under this chapter or any other Act enforced by the Commission, for which the cost of destruction would normally exceed bond amounts determined under sections 1623 and 1624 of title 19 and shall recommend to U.S. Customs and Border Protection a bond amount sufficient to cover the cost of destruction of such products or substances. (b) Study of requiring escrow for recalls and de- struction of products (1) Study The Comptroller General shall conduct a study to determine the feasibility of requir- ing— (A) the posting of an escrow, proof of in- surance, or security sufficient in amount to cover the cost of destruction of a domesti- cally-produced product or substance regu- lated under this chapter or any other Act en- forced by the Commission; and (B) the posting of an escrow, proof of in- surance, or security sufficient in amount to cover the cost of an effective recall of a product or substance, domestic or imported, regulated under this chapter or any other Act enforced by the Commission. (2) Report Not later than 180 days after August 14, 2008, the Comptroller General shall transmit to the appropriate Congressional committees a re- port on the conclusions of the study required under paragraph (1), including an assessment of whether such an escrow requirement could be implemented and any recommendations for such implementation. (Pub. L. 92–573, § 41, as added Pub. L. 110–314, title II, § 224(a), Aug. 14, 2008, 122 Stat. 3069.) § 2089. All-terrain vehicles (a) In general (1) Mandatory standard Notwithstanding any other provision of law, within 90 days after August 14, 2008, the Com- mission shall publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA–1–2007). The standard shall take ef- fect 150 days after it is published. (2) Compliance with standard After the standard takes effect, it shall be unlawful for any manufacturer or distributor to import into or distribute in commerce in the United States any new assembled or unas- sembled all-terrain vehicle unless— (A) the all-terrain vehicle complies with each applicable provision of the standard; (B) the ATV is subject to an ATV action plan filed with the Commission before Au- gust 14, 2008, or subsequently filed with and approved by the Commission, and bears a label certifying such compliance and identi- fying the manufacturer, importer or private labeler and the ATV action plan to which it is subject; and (C) the manufacturer or distributor is in compliance with all provisions of the appli- cable ATV action plan. (3) Violation The failure to comply with any requirement of paragraph (2) shall be deemed to be a failure to comply with a consumer product safety standard under this chapter and subject to all of the penalties and remedies available under this chapter. (4) Compliant models with additional features Paragraph (2) shall not be construed to pro- hibit the distribution in commerce of new all- terrain vehicles that comply with the require- ments of that paragraph but also incorporate characteristics or components that are not covered by those requirements. Any such char- acteristics or components shall be subject to the requirements of section 2064 of this title. (b) Modification of standard (1) ANSI revisions If the American National Standard ANSI/ SVIA–1–2007 is revised through the applicable consensus standards development process after the date on which the product safety standard for all-terrain vehicles is published in the Fed- eral Register, the American National Stand- ards Institute shall notify the Commission of the revision. (2) Commission action Within 120 days after it receives notice of such a revision by the American National Standards Institute, the Commission shall issue a notice of proposed rulemaking in ac- cordance with section 553 of title 5 to amend the product safety standard for all-terrain ve- hicles to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles, and notify the Institute of any provision it has determined not to be so related. The Commis- sion shall promulgate an amendment to the standard for all-terrain vehicles within 180 days after the date on which the notice of pro- posed rulemaking for the amendment is pub- lished in the Federal Register. (3) Unreasonable risk of injury Notwithstanding any other provision of this chapter, the Commission may, pursuant to sections 2056 and 2058 of this title, amend the product safety standard for all-terrain vehi- cles to include any additional provision that the Commission determines is reasonably nec- essary to reduce an unreasonable risk of in- jury associated with the performance of all- terrain vehicles. (4) Certain provisions not applicable Sections 2056 and 2058 of this title shall not apply to promulgation of any amendment of