From labor and employment attorney Alyson Palmer:
The U.S. Occupational Safety and Health Administration (OSHA) published an interim final rule on February 13, 2014, creating the process for handling retaliation complaints brought by whistleblowers under Section 402 of the Food Safety Modernization Act (FSMA). Section 402 of FSMA amended the Federal Food, Drug, and Cosmetic Act to add Section 1012, 21 U.S.C. 399d, which provides protection for employees “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” who report a violation of the Act, testify against, or otherwise participate in a proceeding related to a violation.
Prior to the passage of FSMA on January 4, 2011, there was no federal whistleblower protection in the food safety arena. Accordingly, food industry employees were dependent upon state wrongful discharge laws for relief. Now, any employee who submits a complaint indicating a violation of FSMA or any FDA regulation or order is protected from any form of adverse employment action or harassment based in whole or in part on such a complaint.
Under the interim rule, a covered employee must file a complaint with OSHA within 180 days of the alleged retaliatory conduct. An employee’s whistleblower activity will only be protected when she demonstrates that her actions were based on a reasonable belief that a violation of the Act occurred. The rule cites Sylvester v. Parexel Int’l LLC, ARB No. 07-123, 2011 WL 2165854, at 11-12 (ARB May 25, 2011) to define “reasonable belief.” As the rule explains, reasonable belief requires that the employee have a subjective, good faith belief in a violation and establish that her belief is objectively reasonable based on the knowledge available to a reasonable person in the same circumstances with the same training and experience. The Act also protects an employee’s conduct if her belief is reasonable, but mistaken.
Upon receipt of the complaint, OSHA will notify the employer, who thereafter has 20 days to respond to the allegation. OSHA will only conduct an investigation if the employee makes a prima facie showing (i.e. a non-frivolous allegation) that protected activity was a contributing factor in the complained of adverse employment action; and, the employer fails to demonstrate that it would have taken the same adverse action in the absence of the protected activity. After conducting an investigation, OSHA will issue written findings and, where appropriate, a preliminary order. The parties have 30 days to file objections before the findings and order become the final decision and order of the Secretary. The rule also sets the procedures and time frames for appeals of OSHA determinations to an administrate law judge (ALJ) for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board (ARB) (acting on behalf of the Secretary of Labor), and judicial review of the Secretary’s final decision.
If whistleblower protection policies and procedures are something your business has not yet considered, we strongly encourage you to do so. Implementing an effective FSMA whistleblower protection policy and training program may reduce the risk of exposure to costly wrongful termination lawsuits, government investigations, and injury to reputation.
The rule will be available for public comment until April 14, 2014. Comments may be submitted electronically at http://www.regulations.gov, by fax to the OSHA Docket Office at (202) 693-1648, or by mail to the OSHA Docket Office, Docket No. OSHA-2011-0859, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW., Washington, DC 20210.