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OSHA Issues Rules for Food Safety Whistleblower Cases

Agribusiness Alert

May 9, 2016

On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued final procedural rules for investigating whistleblower cases under the Food Safety Modernization Act (FSMA). The new rules give employees who claim they have been retaliated against for exposing food safety violations the possible right to reinstatement, money damages, and attorney’s fees – and even to a jury trial in federal court.

The FSMA applies to any employer that manufactures, processes, packs, transports, distributes, receives, holds, or imports food. It covers farm workers who pack produce and poultry processing plant employees, as well as employees of other businesses involved in food processing and distribution.

Under the FSMA, any worker who discloses a possible food safety violation and believes he or she has been retaliated against for doing so can file a complaint with OSHA. The FSMA anti-retaliation protections also cover employees who testify about food safety violations, who assist in investigations or other proceedings, and who refuse to participate in activities that violate the statute.

To be protected from retaliation, an employee who alleges an FSMA violation must have a good faith and reasonable belief the statute was not followed. But he or she does not have to be correct. As such, the employer could have to defend a whistleblower claim even if there was no actual violation of the law.

The new rules state that FSMA whistleblower complaints may be either oral or in writing. If the claimant is unable to file in English, OSHA will accept the complaint in any language. If OSHA determines that the employer engaged in retaliatory actions, it may order that the employer reinstate the employee and pay him or her back wages, compensatory damages – including damages for emotional distress – and attorney’s fees.

A food safety whistle blower is not limited to administrative remedies, however. Under the new rules, his or her claims may be “kicked out” to federal court if not resolved with OSHA. Once in court, the employee can request a jury trial.

To minimize the risk of food safety whistleblower complaints, agribusiness employers should consider establishing policies that foster open lines of communications so employees can voice concerns. They should also consider training managers and supervisors on how to respond to and resolve employee concerns without taking actions that may be seen as retaliatory.

1 OSHA’s main role is to enforce the Occupational Safety and Health Act, including its anti-retaliation provision.  In addition, Congress has tasked OSHA with enforcing whistleblower protections under 21 other laws, including the FSMA.