We’re soon going to find out what Section 402 of the Food Safety Modernization Act (FSMA) means. Section 402 is one of those “miscellaneous provisions” of the FSMA that has not received much attention until now, but it’s been on the minds of food industry attorneys and human resource managers ever since the FSMA was signed into law early in 2011. Last year, the rules were handed down to make it an enforceable addition to the Occupational Safety and Health Administration’s (OSHA) Whistleblower Protection Program. With the addition of food safety, OSHA now enforces more than 20 whistleblower statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. In theory, whistleblower protections exist to protect someone on the job from retaliation for doing the right thing — like reporting an injury or violation of the law. It’s not reward, although cash payments might be more effective. But it is supposed to be about the least we can do to reward good behavior. What Section 402 does is to amend Chapter X of the Federal Food, Drug, and Cosmetic Act with language about what constitutes a “covered entity” and what is “protected activity.” Section 402 reads, in part: “No entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any person acting pursuant to a request of the employee)–(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act; (2) testified or is about to testify in a proceeding concerning such violation; (3) assisted or participated or is about to assist or participate in such a proceeding; or (4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.” In other words, private sector employees of the food industry now have the same whistleblower protection as do those who work for gas pipelines, nuclear plants, and all the others. Jonathan N. Costa, the former District Safety Manager for Aramark Sports and Entertainment Services in Kansas City, MO, is among the first to seek protection from retaliation under Section 402. As reported Friday, Costa was fired by Aramark on March 17 after being suspended last Nov. 5 after sharing his concerns about food safety at KC’s Kaufmann and Arrowhead stadiums. Aramark is the food service provider for both venues. In his OSHA complaint, Costa documents how he worked unsuccessfully for four years on the inside to get Aramark to take food safety violations seriously. It apparently did not. Costa, a former public health department official, was hired in April 2012 by Aramark as a food safety manager. He was promoted to District Safety Manager with responsibilities for all of Aramark’s KC venues. He was praised by his employer as a “great asset,” for knowing food safety “better than anyone,” and for his “continued leadership.” But he also learned Aramark did not share his passion for compliance with food safety laws and regulations. Costa did a “hot holding” analysis in June 2012 showing Aramark was not maintaining hot dogs at proper temperatures. His complaint states that Aramark “chastised” him for preparing the report, collected all copies, and had them destroyed. In a May 2014 yearly audit with Aramark’s safety and risk control specialist, Costa expressed concern that Aramark management provided little support for food safety and compliance, leaving him powerless to “effect cultural change.” During the audit, the Aramark specialist “witnessed employee resistance” to food safety concerns. Food safety violations documented during that audit included missing temperature logs, hot boxes with missing internal temperature gauges, hot and cold issues, sanitation violations, presence of chemicals near food, and food workers wearing excessive jewelry. On May 8, 2014, Costa emailed Carl Mittleman, president of Aramark’s Sports and Entertainment Division, about his concerns and asked to discuss his role as a District Safety Manager. Mittleman suggested Costa raise the issues in a district managers’ meeting. The next day, Costa sent two reports to the company’s safety and risk control unit about food safety violations at two events known as “Buck Night” and “Draft Party.” The problems he cited were similar to those identified in the audit. Costa followed up with risk, safety and liability concerns for all the venues that were his responsibility. In his complaint, he quotes Aramark District Manager Scott McGinn as saying he was aware of the issues, but had a business to run. “It sounds to me like you don’t want to work for Aramark anymore,” McGinn reportedly told Costa. Forward to October 2014, when the Royals were on a run that would take them to the World Series. Costa sent Eric Foss, president and CEO of Aramark, “a detailed video presentation identifying countless food and safety violations at his (KC) facilities (including cockroaches in vending areas, mouse feces on the same tray as pizza dough, sinks where employees were supposed to wash their hands being blocked by boxes or trash, employees eating in food prep area and trays of food headed for customers that measured at unsafe temperatures.” In the video for Foss, Costa said he’d brought these concerns to senior management without success and was turning to the CEO for guidance. He got a reply from Aramark’s senior HR manager asking for additional information. Costa responded by asking how season ticket holders would react if they knew they were served at the “Draft Party” by staff that lacked both refrigeration and hand-washing facilities. He asked how “Buck Night” fans might respond if they knew hot dogs had been kept at improper temperatures since 6:30 a.m., and he asked how 70-80,000 fans might react if they knew mixed drinks were “infused with dead flying insects.” As baseball moved into the post-season, Costa met with a regional vice president who had not seen the Foss video, but the meeting did bring about a new district manager for Costa to work with. But that manager then asked Costa to “narrow down” the list of food safety issues at the KC stadiums. Costa sent the new district manager an email about several critical food and safety issues going into Game 7 of the World Series on Oct. 31, 2014, including the use of expired pizza dough. “On Nov. 3, 2014, after months of failed attempts to convince Aramark to address his concerns, Costa contacted outside authorities,” his OSHA complaint states. “That day, Costa sent information relating to Aramark’s critical food and safety violations to the Kansas City Health Department, the U.S. Food and Drug Administration (FDA) and the Platte County Health Department, and others.” “Within hours of his complaints, the Kansas City Health Department sent inspectors to investigate, and found violations at 20 out of 26 stands, including 37 critical violations,” the complaint continues. Two days later, Costa was suspended with pay, but has now been fired on the claim that he violated Aramark’s media policy. He did speak last November with ESPN’s Outside the Lines (OTL) unit after reporting the health and safety violations. Clearly, Aramark is covered by the FSMA. Costa is seeking protection from retaliatory actions under Section 402. His OSHA complaint, much of which we’ve shared here, seems to demonstrate that Costa was serious about his food safety responsibilities at those KC venues. We’re all going to be watching to see how this one comes out. If Section 402 does not protect a food safety manager working in this sort of corporate environment, it’s probably not going to be much good for that farmworker or someone on the line at a food manufacturer. Again, Section 402 only promises whistleblowers protection from retaliation. It does not mean that if Costa gets his job back, Aramark will adopt a corporate culture that embraces food safety.