On February 13, 2014, the Occupational Safety and Health Administration (OSHA) posted its interim final rule regarding the employee protection provision of the Food Safety Modernization Act (FSMA).

This provision, often known as the whistleblower provision, establishes procedures for handling employee complaints under section 402 of the FSMA, which was signed into law in January of 2011.  Section 402 protects employees of covered entities who disclose information about a possible violation of the Food, Drug, and Cosmetic Act (FDCA) from retaliation by their employer.  Covered entities are those “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.”

Under the FSMA, the employee must have a reasonable belief that the covered entity is in violation of the FDCA.  The rule elaborates on the FSMA’s “reasonable belief” standard, which requires that the complainant hold both (1) a subjective, good-faith belief that the conduct violates the FDCA or related rule and (2) an objectively reasonable belief that the conduct violates the FDCA or related rule.

Objective reasonableness is determined “based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.”  This standard is consistent with Administrative Review Board decisions in the context of Sarbanes-Oxley whistleblower complaints.

Procedurally, the OSHA rule provides the employee 180 days to file a complaint with the Secretary of Labor.  Subsequently, written notice is provided to those named in the complaint, and a government investigation may follow.

The Secretary may conduct an investigation only if the complainant has made a prima facie case showing that the projected activity was a contributing factor in the adverse employment action taken against him or her.  Once the Secretary issues a summary of an investigation’s findings, both complainant and respondent have 30 days to file objections to the findings and/or preliminary order issued by the Secretary and request a hearing before an administrative law judge.

Where the Secretary has determined that a violation has occurred, the Secretary can award the complainant preliminary reinstatement, affirmative action to abate the violation, back pay with interest, compensatory damages, and/or costs and attorney fees.

This rule highlights the need for companies in the food industry to have robust compliance systems, including procedures for employees to anonymously notify the organization of potential violations and training for supervisors regarding protected whistleblower conduct.

OSHA has invited the public to submit comments on the interim final rule.  Individuals may submit comments electronically at the Federal eRulemaking Portal, via mail or facsimile.  Comments must be submitted by April 14, 2014.

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