While the primary goal for employers should be avoiding employment retaliation claims in the first instance, when an employer is faced with such a claim under the Consumer Financial Protection Act of 2010 (CFPA), it has the Department of Labor’s basic procedural road map as a guide to what to expect.
On April 3, 2014, the DOL issued final rules establishing procedures for processing and investigating whistleblower complaints brought pursuant to the CFPA. The new procedures mirror those in many other retaliation statutes over which the DOL and the Occupational Safety and Health Administration have responsibility.
The CFPA created the Consumer Financial Protection Bureau (CFPB) to investigate and enforce violations of laws concerning consumer financial products and services provided by banks, nonbanks, and other service providers. Employers cannot retaliate against employees for engaging in certain protected activities, including: (1) reporting, either to the employer or a government agency, alleged violation(s) of law(s) enforced by the CFPB; (2) participating in an investigation of alleged violation(s) of law(s) enforced by the CFPB; or (3) refusing to participate in or perform acts the employee reasonably believes violate a law(s) enforced by the CFPB.
The new procedural rules provide:
- An employee alleging retaliation must file a complaint with OSHA within 180 days of the alleged adverse employment action.
- OSHA will notify the employer of the complaint, the allegations, the evidence supporting the allegations, and the employer’s rights.
- The employer has 20 days to file a position statement.
- OSHA must stop investigating and dismiss the complaint if: (1) the employee fails to make a prima facie showing that her protected activity was a contributing factor to the adverse action about which she complains; or (2) the employer presents clear and convincing evidence that it would have taken the same action absent the protected conduct.
- Within 60 days of the complaint, OSHA must issue a written decision, including a delineation of the basis for its decision.
- If OSHA finds reasonable cause to believe retaliation has occurred, it must order appropriate relief, which includes preliminary reinstatement, back pay, compensatory damages, and affirmative action to ensure future compliance with the law.
- OSHA’s determination is final, unless a party files objections within 30 days of the decision.
- Once a timely objection is filed, the matter proceeds before a DOL Administrative Law Judge. The employer can file a motion to stay the preliminary order of reinstatement, if applicable. All other preliminary damage awards are automatically stayed.
- At the ALJ hearing, the employee must show, by a preponderance of the evidence, that the alleged protected activity was a “contributing factor” in the adverse employment action. If the employee meets her burden, the employer must show, by clear and convincing evidence, that it would have taken the adverse employment action absent the protected activity.
- The ALJ must issue a final order within 120 days of the hearing.
- Following the ALJ’s order, the parties have 14 days to ask the Administrative Review Board (ARB) to review the decision. The ARB must decide whether to hear the appeal within 30 days.
- If ARB decides to hear the appeal, the ALJ’s decision is binding until overturned. However, the employer can file a motion to stay the ALJ’s order of reinstatement, if applicable.
- Within 60 days of the final ALJ or ARB order, an objecting party may ask a United States Court of Appeals to review the order.
- Similar to the Sarbanes-Oxley Act, a complainant can ask a federal district court to review her case if it has been 210 days since filing the complaint and no final decision has been issued. A complainant also can ask for such review within 90 days of receiving a written determination from OSHA, assuming no final decision from an ALJ or the ARB has been issued.