Last week, the federal Occupational Safety and Health Administration issued interim final rules for employees in the food manufacturing, processing, packing, transporting, importing and distribution industries who contend that they were disciplined or fired for complaining about food safety issues. The rules were issued under the FDA Food Safety and Modernization Act, and are intended to prohibit retaliation against employees who raise food safety issues in the workplace.
The interim final rules became effective immediately, but are subject to change after a 60-day notice and comment period. Employees have 180 days from the date of the alleged retaliatory act to file a complaint with federal OSHA. After investigation, if it finds probable cause for retaliation, OSHA has the authority to issue an order requiring reinstatement, back wages, attorneys’ fees and other damages suffered by the complaining party. The employer can appeal the order to a federal administrative law judge, but OSHA can order temporary reinstatement until the appeal is heard. OSHA can also award employers up to $1000 in attorneys’ fees in the event it concludes that the complaint was frivolous or was made in bad faith.
These rules are the latest in a series of whistleblower protection laws that involve consumer rather than workplace safety, but have been delegated to OSHA for investigation and enforcement purposes. Other examples include securities violations under the Sarbanes-Oxley Act, and automotive and trucking safety complaints under the Surface Transportation Act. Employers in affected industries can expect future consumer safety rules to include employee anti-retaliation and whistleblower protection provisions.