Seyfarth Synopis: Employers may face liability for retaliation charges from employees who report food safety issues under the Food Safety Modernization Act (FSMA).

Employers in the food industry have a new headache to worry about. On April 18, 2016, the federal Occupational Safety and Health Administration released final rules establishing standards and procedures for whistleblower and retaliation complaints. Employees now may file whistleblower complaints with OSHA based on their reports of food safety concerns.

Protected Activities

The FSMA protects employees who provide information relating to any action that the employee reasonably believes to be in violation of the Federal Food, Drug, and Cosmetic Act. The Act protects internal reports to management, even if made in the ordinary course of the employee’s duties. If an employee works as a food safety professional, the employee’s regular job duties (reporting food safety issues to the employer) are “protected activities.” Any adverse employment action against a food safety professional could result in a retaliation claim with OSHA, and subject the employer to an Agency investigation.

The FSMA further protects employees who testified or assisted in a proceeding about the violation, or refused to participate in any activity or assigned tasks reasonably believed to be in violation of the law.

Burdens of Proof

Under the regulations, an employee complainant need only present “direct or circumstantial evidence” to give rise to “an inference” that (1) the employer suspected that the employee engaged in protected activity, and (2) the protected activity was a “contributing factor” in the adverse action. Mere “temporal proximity” to the protected activity is sufficient to meet the complainant’s burden. OSHA will conduct an investigation, unless the employer can demonstrate by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity.

After OSHA completes its investigation, the Agency will have to prove to an Administrative Law Judge by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint. An employer can avoid liability if it demonstrates by “clear and convincing evidence” that it would have taken the same adverse action in the absence of any protected activity.

Statute of Limitations

The rule provides a 180-day statute of limitations for retaliation claims, beginning when the employee is aware or reasonably should be aware of the employer’s decision to take an adverse employment action.

Remedies and Settlement

The regulations provide for damages, reinstatement with back pay and interest, and litigation costs. OSHA retains the right to review and reject any settlement agreement between the complainant and the employer.

Recommendations

Employers must be vigilant to promptly address food safety issues and prevent retaliation claims from employees. Employers should diligently record their rationales for adverse employment actions. If an employer receives a retaliation claim, the employer should take immediate action; a position statement is due to the OSHA investigator within 20 days of receipt of notice. To avoid an inspection, that position statement must meet a high bar of proof that no retaliation took place.