Safety Whistleblowing 

Emory Law Journal, volume 74 (forthcoming 2025)

80 Pages Posted: 13 Dec 2024 Last revised: 27 Jan 2025

Date Written: February 29, 2024

Abstract

When companies fail to do the right thing, critical safety-law violations often go unchecked. Using previously unstudied records, this Article provides the first critique of a core component of the federal consumer product safety whistleblower regime created by Congress in 2008. This Article reveals why and how the current law—which provides protections only to employee-whistleblowers who are retaliated against—has failed to protect consumers from death and injury. First, documents obtained via the Freedom of Information Act provide evidence suggesting that the current program fails on its own terms. Very few workers have filed complaints; the number of successful complaints is minuscule; and agency investigations fixate on the employee’s conduct, virtually never examining underlying safety claims. Moreover, there is no evidence that the program has ever resulted in the removal of a hazardous product from the market or the imposition of a penalty against a corporate violator. Second, and more fundamentally, the current narrow regime fails to provide any financial incentive to blow the whistle on corporate flouting of product-safety law. Many employees with valuable information about safety-law violations (i) are not in fact retaliated against and (ii) face powerful inducements not to report, leaving safety regulators and consumers in the dark.

To address these critical gaps, this Article proposes a comprehensive reform of the whistleblower program. First, to effectively deter and detect corporate safety misconduct, Congress should transfer oversight of the product-safety whistleblower program from the Occupational Safety and Health Administration, an agency ill-equipped to examine product safety, to the U.S. Consumer Product Safety Commission, which has the expertise, enforcement power, and statutory mission to protect consumers. Second, Congress should incentivize safety whistleblowing via rewards for high-impact tips. Such a bounty program would account for whistleblowing’s value as a crucial backstop to federal safety law’s reliance on industry self-reporting. Third, antiretaliation protections should be strengthened to expand remedies for workers targeted for revealing crucial safety information. Finally, Congress should amend the statute to account for modern-day economic realities, including the dominance of consumer-product imports and the rise of non-employees as knowledgeable tipsters. Together, these reforms would protect both American consumers and workers from corporate misconduct.

Keywords: Safety law, whistleblowing, compliance, recalls, bounty programs, civil enforcement, administrative law, Consumer Product Safety Act, Consumer Product Safety Commission, Employment law, Product safety, Whistleblower protection

Suggested Citation

Cavataro, Benjamin, Safety Whistleblowing  (February 29, 2024). Emory Law Journal, volume 74 (forthcoming 2025), Available at SSRN: https://ssrn.com/abstract=5004102 or http://dx.doi.org/10.2139/ssrn.5004102

Benjamin Cavataro (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Avenue
Detroit, MI 48202
United States

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