The U.S. Occupational Safety and Health Administration (OSHA) published its final rule April 18, 2016 setting forth the procedures for retaliation complaints arising under the Food and Drug Administration Food Safety Modernization Act (FSMA). The FSMA was established, in part, to protect employees who disclose to their employer or the government information about possible violations of the Food, Drug and Cosmetic Act from retaliation by employers that manufacture, process, pack, transport, distribute, receive, hold and import food.
Under the new rule, a covered employee can now file a FSMA complaint of retaliation with the Secretary of Labor within 180 days of the alleged retaliatory act. After receiving the complaint, the secretary will give notice and the supporting evidence to the employer, who is then given an opportunity to respond. Within 60 days, the secretary will give the complainant and employer an opportunity to submit a response and meet with the investigator to present statements from witnesses and conduct an investigation. The secretary may only conduct an investigation if the complainant has made a “prima facie showing” that the protected activity was a contributing factor in the adverse action alleged in the complaint, and that the employer has not demonstrated, through “clear and convincing evidence,” that it would have taken the same adverse action in the absence of that activity.
After investigating a complaint, the secretary will issue a preliminary order. If the secretary finds there is reasonable cause to believe retaliation occurred, the secretary can order the employer to: (1) take affirmative action to abate the violation; (2) reinstate the complainant to his or her former position together with compensation (including back pay); (3) restore the terms, conditions, and privileges associated with his or her employment; and (4) pay compensatory damages to the complainant as well as costs and expenses (including attorneys’ fees).
The preliminary order may be appealed within 30 days to an administrative law judge at the Department of Labor. If no hearing is requested, the preliminary order will become final and will not be subject to judicial review. If a hearing is held, the statute requires it be held “expeditiously,” and the secretary has 120 days after conclusion of the hearing to issue a final order.
After a hearing, any party aggrieved by the secretary’s final order may file an appeal to the U.S. Court of Appeals within 60 days of the issuance of the final order. Additionally, FSMA permits the employee to seek de novo review of the complaint by a U.S. district court in the event the secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination.
In sum, the FSMA whistleblower protections outlined above are part of a larger trend of expanding OSHA’s whistleblower protection powers. OSHA now enforces the whistleblower provisions of the Occupational Safety and Health Act and 21 other statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations. Additional information is available at http://www.whistleblowers.gov. The FSMA whistleblower final rule is available here.