Does your Company have an up-to-date Whistleblower Protection Policy? The answer to that question has become all the more important for food-related companies in light of a new interim final rule that the Occupational Safety and Health Administration (OSHA) has issued for handling allegations by employees who believe companies illegally retaliated against them for reporting violations of the Food Safety Modernization Act (FSMA). 79 Fed. Reg. 8619 (Feb. 13, 2014).
Section 402 of FSMA added Section 1012 to the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. § 399d), which protects employee whistleblowers against retaliation by any entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.
The Secretary of Labor has delegated responsibility for handling complaints of prohibited retaliation to OSHA’s Assistant Secretary for Occupational Safety and Health. OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and many other statutes protecting employees in a variety of industries from retaliation for whistleblowing.
The OSHA interim final rule sets forth detailed procedures for the submission, investigation, adjudication, and appeal of complaints of retaliation. Significant aspects of the interim final rule include the following:
Food company employees are now protected against retaliation because the employee (or any other person acting at the request of the employee) engaged in any of the following “protected activities”:
- Provided, caused to be provided, or are about to provide to their employer, the federal government, or a state attorney general information relating to any violation of, or any act the employee reasonably believes to be a violation of, any provision of the FD&C Act or any order, rule, regulation, standard, or ban under the FD&C Act;
- Testified or is about to testify in a proceeding concerning such violation;
- Assisted or participated, or is about to assist or participate, in such a proceeding; or
- Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of the FD&C Act or any order, rule, regulation, standard, or ban under the FD&C Act.
The employee’s whistleblower activity is protected if it is based on a “reasonable belief” that the law has been violated. To have a reasonable belief, an employee “must have both a subjective, good faith belief and an objectively reasonable belief that the complained-of conduct violated the FD&C Act or any order, rule, regulation, standard, or ban under the FD&C Act.” 79 Fed. Reg. at 8621. An objectively reasonable belief is a belief based on the knowledge available to a reasonable person in the same circumstances with the same training and experience. The employee is not required to show that the conduct complained of constituted an actual violation of law.
Prohibited retaliation includes:
- Discharging the employee;
- Other forms of retaliation including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting, or disciplining any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment.
To make out a prima facie case, the employee need only show that the protected activity was a “contributing factor” leading to the retaliation, i.e., that it was one factor that affected the employer’s decision to retaliate.
- There is no particular form for complaints of retaliation, and OSHA will accept both oral and written complaints. If the employee/complainant is unable to file the complaint in English, OSHA will accept the complaint in any language.
- The complaint must be filed within 180 days after the alleged retaliation. The time for filing may be tolled for reasons warranted by applicable case law (e.g., the employee mistakenly filed the complaint with the wrong government agency).
- Upon receipt of a complaint, OSHA will notify the employer/respondent, as well as the Food and Drug Administration.
- If the employer demonstrates, by clear and convincing evidence, that it would have taken the adverse action, i.e., the allegedly retaliatory action, even in the absence of the protected activity, OSHA will terminate its investigation.
- “Food,” for purposes of whistleblower protection, is defined as it is defined in the FD&C Act (i.e., “articles used for food or drink for man or other animals, chewing gum, and articles used for components of any such article”).
- Whistleblower protection may not be waived by any agreement, policy, form, or condition of employment.
The interim final rule became effective immediately upon publication. OSHA is accepting comments and additional materials if submitted by April 14, 2014.
The existence of a Whistleblower Protection Policy, and adequate training on the provisions of that Policy to all employees, can be an important element of a defense to whistleblower claims. If you have questions about whether your policy or employee training is adequate, it would be advisable to review that with your legal counsel.
