Employment and labor law firm Littler Mendelson is advising food manufacturers to be prepared for new whistleblower protections under the Food Safety Modernization Act (FSMA). The San Francisco, CA-based firm issued a client alert last month after the Occupational Safety and Health Administration (OSHA) published its interim final rule regarding the employee protection (whistleblower) provision of FSMA. Section 402 of the act ensures that employees of an “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” are protected against retaliation for reporting a violation of the act or testifying in a proceeding about a violation. The OSHA rule establishes the procedures and timeframes for handling retaliation complaints as part of FSMA. The authors of the alert write that whistleblowers are protected “as long as they have a reasonable belief — defined in the regulation as a subjective, good-faith belief and an objectively reasonable belief — that the complained-of conduct violates the Federal Food Drug and Cosmetic Act (FDCA).” However, they say the whistleblower doesn’t need to demonstrate that what they complained about actually violated the law. “What the new rule does is emphasize the point that there’s a huge amount of latitude given to employees to complain,” alert co-author Earl “Chip” Jones told Food Safety News. “Because of that, employers need to be very careful about taking disciplinary action against an employee that may be disgruntled, may be complaining about issues at work, but also having performance problems.” Littler Mendelson’s alert recommends that employers develop a food safety reporting policy, train line managers and supervisors about the importance of dealing with complaints, log complaints, document investigations into the subject matter of the complaint and any actions taken as a result, and ensure that any adverse action taken with respect to an employee who has lodged such a complaint would have been taken absent the complaint. Jones says that the FSMA protection creates “a very low bar to establish a claim.” One example he gives for why the bar may be too low is FDA’s Current Good Manufacturing Practices (CGMPs). They’re vague, he says, “so when someone is complaining, it makes it very difficult for anyone to know whether that’s actually a violation of a substantive law or regulation.” OSHA’s interim final rule has been effective since Feb. 13, but comments and additional materials about it can be submitted until April 14.
