On 3 April 2014, the US Department of Labor's Occupational Safety and Health Administration ("OSHA") issued its interim final rule and request for comments on the procedures for handling retaliation complaints under the Consumer Financial Protection Act (the "CFPA"). The interim rule went into effect immediately and applies to employers engaged in offering or providing a financial product or service, including residential mortgages, mortgage loan modification and foreclosure relief services, private education loans, consumer credit, and debt relief services, and also applies to affiliates of such employers. These new procedural rules are in line with those applicable to other whistleblower protections that fall under OSHA's authority.
The CFPA was enacted as Title X of the Dodd-Frank Act. It created the Consumer Financial Protection Bureau (the "Bureau") as an independent bureau to regulate the offering and provision of consumer financial products or services under certain federal consumer financial laws.
Under the CFPA, covered employees in the consumer financial product and service industries are protected from retaliation for reporting violations of the CFPA. Under the final interim rules, an employee who believes that he or she has been retaliated against for a "protected activity" under the CFPA must file a complaint or make an oral complaint with OSHA within 180 days after the alleged violation.
Protected activity includes providing information regarding a violation of the CFPA or related law to the employer, the Bureau or state or local authority and refusing to participate in, any activity, policy, practice, or assigned task that the employee reasonably believes to be in violation of any rule under the jurisdiction of the Bureau.
In filing a complaint, the employee has the initial burden of establishing that the protected activity was a "contributing factor" in the retaliatory action; an employer then has the opportunity to rebut the claim by demonstrating with clear and convincing evidence that it would have taken the same adverse employment action had the employee not engaged in the protected activity.
The comment period closed on 2 June 2014. OSHA's interim final rule is available at:
http://www.regulations.gov/#!documentDetail;D=OSHA-2011-0540-0001
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