Food Safety Worker Whistleblowers — FSMA
Employees in all aspects of the food industry are protected under the Food Safety Modernization Act from retaliation for reporting food safety violations. Whistleblowers who work in the manufacturing, transportation, processing, packing, holding, or selling of food items and report food safety problems cannot be retaliated against by their employers. Read below to learn more about whistleblower and retaliation protections for food workers under the Food Safety Modernization Act.
Yes. In November 2010, Congress passed the Food and Drug Administration (FDA) Food Safety Modernization Act (FSMA), which imposes strict food safety standards and grants the FDA greater authority to regulate tainted food. The act ensures workers can disclose food safety concerns without fear of reprisal by their employers. The act was passed to help avoid food contamination leading to illness and death.
Employees working with food are in the best position to ensure standards are kept up and report any problems. The act encourages employees to speak out when they see issues and ensures they will not be punished by their employers for doing so.
FSMA applies to all workers engaging in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. For example, someone working in a meat processing plant, a trucker transporting produce and a fast-food restaurant worker would all be protected.
For an employee to win a FSMA case, they must be able to convince a judge there was:
A protected activity an adverse employment action, and the protected activity caused the adverse action.
A “protected activity” is an action an employee can take and still be protected from retaliation by their employer under the law. The Department of Labor and the courts interpret “protected activity” broadly. For example, calling OSHA to complain about a food safety violation is protected, so if your boss gets mad and fires you, then you can make a complaint against your employer for the unlawful retaliation.
The FSMA prohibits retaliation against any employee who has:
provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information about any violation, or any act or omission the employee reasonably believes to be a violation of any provision of FSMA or any order, rule, regulation, standard of it; 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 (or other such person) reasonably believed violates any provision of FSMA, or any order, rule, regulation, standard, or ban under it.
The complaint does not have to disclose an actual violation of a food safety law or regulation, but the employee must reasonably believe a violation has taken place. Some examples of protected conduct include:
Reporting cheese is stored at the wrong temperature and more susceptible to spoiling or having harmful bacteria. Reporting additives harmful to infants have been added into baby formula. Reporting food is being stored in a facility infested with flies and rodents. Reporting a peanut butter manufacturer did not recall a batch it knew might have contained contaminated peanuts.
Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor. Employees cannot be disciplined for protected activity as long as it is lawful and the character of the conduct is not indefensible in its context.
If the employee’s behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire employee.
6. What if the employer makes a mistake and retaliates against someone who engaged in no protected activity?
The victim of mistaken identification as a whistleblower has just as much right to a remedy as the real whistleblower. Otherwise, an employer can chill employee reporting by firing every tenth employee whenever a thought of whistleblowing appears. A complainant only needs to show that the employer thought the employee engaged in protected activity when respondent decided on the retaliation.
The Department of Labor has found that an employer is prohibited from discharging or in any means discriminating against any employee with respect to his or her compensation, terms, conditions, or other privileges of employment. They further find the action does not have to be tangible but can include any action which may dissuade a reasonable employee from engaging in protected activities. Some examples include termination, suspension, demotion, reduction in pay, failure to promote or hire, diminution of job duties and blacklisting.
A complainant can prevail merely by showing by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable action. A contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. Once a complaint meets that burden, an employer may avoid liability only if it proves by clear and convincing evidence it would have taken the same action without the employee engaging in the protected activity. Clear and convincing evidence must be shown to be highly probable or reasonably certain.
Complaints are filed with the Occupational Safety and Health Administration (OSHA). They should include a full statement of the acts and omissions, with dates if possible which constitute the violations. The complaint should also identify the employer and the names of any individuals who have participated in the retaliation. It is also important to identify the adverse employment actions the employee believes was the result of their retaliation. An attorney or union representative may file on behalf of the employee as long as they have the employee’s permission.
The complaint may be filed with any office of the Occupational Safety and Health Administration of the U.S. Department of Labor. OSHA prefers to receive complaints at the local office. You can find the address and fax number for the local OSHA office here. You can also call the OSHA staff for help at 1-800-321 OSHA or file a complaint online by using the form provided by OSHA at: http://www.osha.gov/as/opa/worker/complain.html
The Administrator’s office is at:
Occupational Safety & Health Administration
200 Constitution Ave NW, Rm N3647
Washington, DC 20210
Compliance Programs Fax: 202-219-9187
The complaint must be filed within 180 days after the date on which the adverse retaliation action took place.
OSHA will investigate the claim and can order preliminary relief, including reinstatement. Either party can appeal OSHA’s determination by requesting a hearing before a DOL Administrative Law Judge (ALJ). Discovery before an ALJ typically proceeds at a faster pace than discovery in state or federal court, and the hearings are less formal than federal court trials. For example, ALJs are not required to apply the Federal Rules of Evidence. Either party can appeal an ALJ’s decision to the ARB and can appeal an ARB decision to the circuit court of appeals in which the adverse action took place.
If the Secretary of Labor fails to issue a final decision within 210 days of the filing of a complaint, or within 90 days after receiving a written determination from OSHA, the complainant can remove her claim to federal court for review and either party may request a trial by jury. A complainant could remove the claim to federal court and add additional claims, such as a common law wrongful discharge action, which would provide an opportunity to obtain punitive damages.
Remedies include injunctive relief, reinstatement, back pay with interest, “special damages,” attorney’s fees, litigation costs, and expert witness fees. Where reinstatement is unavailable or impractical, front pay may be awarded. “Special damages” has been construed under similar whistleblower protection statutes to include damages for pain, suffering, mental anguish and an injured career or reputation.
It is difficult for most people to know about all the rules and put together all the information to win a whistleblower case. Some lawyers with experience in whistleblower cases will accept cases even when the client cannot afford to pay regular fees. The lawyer will trust the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer’s first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement to the OSHA investigator.
When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site’s attorney resources page.
You can visit the National Whistleblowers Center online at http://www.whistleblowers.org/ or contact them at:
National Whistleblowers Center
3238 P. St. NW
Washington, DC 2007
Email: [email protected]
Phone: (202) 342-1903
Fax: (202) 342-1904
You can visit the Food and Drug Administration online at http://www.fda.gov/food/foodsafety/fsma/default.htm or contact them at:
Food and Drug Administration
5100 Paint Branch Pkwy
Wiley Building, HFS-009
Attn: FSMA Outreach
Email: [email protected]
Phone: 1-888-INFO-FDA (1-888-463-6332)
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