Food Safety Worker Whistleblowers – 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. You can find the complete law at the FDA website.

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. The act only applies to workers regulated by the FDA and not to workers under USDA.

For an employee to win a FSMA case, they must be able to convince a judge there was:

A protected activityAn 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:

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; orObjected 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.

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 the 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).The Department of Labor’s regulations state the form of the complaints as follows:

No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file the complaint in English, OSHA will accept the complaint in any language.

When submitting a complaint to OSHA, you should identify the responsible employer or employers, and the names of individuals who have participated in the retaliation. And it is critical to identify the adverse employment actions you believe were the result of the retaliation.

Retaliation complaints for whistleblowing should be filed with the Occupational Safety and Health Administration of the U.S. Department of Labor.

OSHA provides directions on how to file a complaint. You may submit a complaint to OSHA online or by fax, mail, email, phone, or in person. If you choose to file by phone or in person, OSHA requests you contact your regional office, which can be located here. OSHA’s non-regional phone number is 800-321-6742.

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. See workplacefairness.org’s employment attorney directory if you need to contact an attorney.

The Food & Drug Administration has a fact sheet for filing a whistleblower complaint under the Food Safety Modernization Act here. You can visit the FDA website and find their contact information, including specific email addresses, here.

The Food and Drug Administration can be reached by phone at 1-888-463-6332 or by writing to:

Food and Drug Administration
10903 New Hampshire Ave
Silver Spring, MD 20993