New Protections for Food Service Whistleblowers
April 9, 2014 by Peter McEntee
Food and drug safety has been in the news over the last few years. In 2011, President Obama signed the Food Safety Modernization Act, which included a provision protecting employees in the food industry who report information regarding their employer’s violations of the Food, Drug & Cosmetic Act (FD&C). That law prohibits employers in the food industry from retaliating against an employee for reporting violations to an employer, the federal government, or a state attorney general, or who participate in proceedings regarding an alleged violation. To receive whistleblower protection, an employee must show that the employee’s protected activity was a contributing factor in the retaliation, or “adverse employment action.” We at Beeson Tayer and Bodine (BT&B) have been protecting employee rights for over 75 years and encourage anyone who believes an employer has retaliated for reporting a violation to learn about the new protection offered by this statute.
The statute sets forth a detailed complaint, investigation and hearing procedure for litigating allegations that an employer has retaliated against a whistleblower. The Occupational Safety and Health Administration (“OSHA”) oversees this process and recently implemented interim final rules and regulations to implement these important protections. The OSHA regulations have specific regulations that are favorable for employees bringing these claims, ensuring that these protections are meaningful.
The important provisions of the regulations include:
Procedures for Filing – The regulations provide that a complaint need not be a formal document and does not have to conform to any court requirements, but instead simply must alert OSHA that they are alleging retaliatory conduct and want the issue investigated. In fact, the complaint may be made orally or in writing. The complaint must be filed within 180 days of the violation.
Reasonable Belief – The statute provides these protections if the employee reports alleged violations based on a “reasonable belief” of a FD&C violation. The regulations interpret that to have a “reasonable belief” the employee must have both (a) a subjective good faith belief and (b) an objectively reasonable belief, that the employer violated the FD&C. The regulations further provide that the subjective standard is met as long as the employee actually believed the employer violated the law. The objective standard is determined based on whether a reasonable person in the employee’s circumstances and with the employee’s level of experience would believe that the employer’s conduct violates the law.
Contributing Factor – To have a valid complaint, the law requires an employee to prove that the protected activity was a contributing factor to the adverse action taken by the employer. The regulations provide that the complainant will have met their burden simply by alleging facts and evidence to give rise to an inference that the employer knew or suspected that the employee engaged in protected activity, and that activity was a contributing factor in the adverse action. The burden may be satisfied if the complaint shows that the adverse action took place close in time to the protected activity, or at the first opportunity available to the employer. Employers can attempt to rebut an employee’s complaint by showing that it would have taken the same adverse action in the absence of the protected activity. The employer, however, must prove this by clear and convincing evidence.
Preliminary Reinstatement – The OSHA regulations also provide that OSHA may order preliminary reinstatement if it finds that there is a prima facie case for a violation and if the employer has not met its burden of proving that it would have taken the same adverse action, even in the absence of the employee’s protected activity. Once such a preliminary order is issued, the employer may file objections and seek a hearing contesting the allegations, but the preliminary reinstatement remains in place while the process continues. Therefore, an aggrieved employee can return to work while the potentially lengthy hearing and appeal process is pending.
BT&B, an Oakland and Sacramento employment law firm, offers summaries of employee and union rights as new laws and statutes impact the workplace. If you or someone you know believes that an adverse employment action such as dismissal or demotion has been taken as retaliation for reporting a violation of federal or California state regulations you can contact us to discuss you legal options.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
