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Civil Litigation: New employee whistleblower protection in food safety arena

Cordello,-Elizabeth

Elizabeth A. Cordello

In January 2011, President Obama signed into law the Food Safety Modernization Act (FSMA). While hailed by some as the most sweeping food safety reform in a generation, the law passed with little fanfare. While FSMA is best known for the sections aimed to prevent food borne illness, surprisingly few human resources professionals and food business employers know that FSMA also includes robust whistleblower protections for employees who raise protected food safety concerns.

FSMA covers businesses regulated by the Food and Drug Administration that manufacture, process, pack, transport, distribute, receive, hold or import food. FSMA prohibits covered employers from discharging or otherwise discriminating against employees for engaging in certain protected activities, which include: 1) making an internal or external disclosure regarding the reasonable belief of a FSMA violation — an actual violation need not be proven to pursue a claim; 2) refusing to participate in a task, activity or practice based upon the reasonable belief of a FSMA violation; or 3) testifying or otherwise participating in a FSMA related proceeding.

In order to pursue a claim, the claimant must first file a complaint with the Occupational Safety and Health Administration within 180 days from the last retaliatory act. If OSHA finds there is “reasonable cause” to believe a FSMA violation has occurred, it may order reinstatement and award back pay, as well as other relief. If OSHA has not issued a final determination within 210 days after the filing of the complaint, the complainant may file an action with a demand for a jury trial in federal court. The damages available to a complainant in federal court include back pay, front pay, attorneys’ fees, costs, reinstatement, as well as “special damages” that can include compensation for damage to reputation, mental anguish and related damages.

Given the vast size of the workforce covered by the FSMA whistleblower provision, and the complainant-friendly standard of proof, the potential impact of this law may eclipse other whistleblower laws that have received more media attention, such as the Consumer Protection Act or Dodd-Frank Wall Street Reform. In order to avoid potentially catastrophic damage to reputation and monetary liability, employers would be well advised to take the following steps:

• Develop a written policy and method of reporting complaints: Employers should have their handbooks revised to indicate that employees have the right to communicate food safety related concerns without fear of reprisal. The policy should also provide a method of reporting such concerns, such as a hotline.

• Incorporate FSMA compliance into orientation and training: Employers should become familiar with the various ways FSMA affects their operations, including employee relations issues related to protected whistleblower activity. Supervisors should be trained to recognize and appropriately respond to disclosures or related activities protected by FSMA. There should also be procedures in place for receiving, monitoring, and responding to protected complaints.

• Be prepared to defend and minimize exposure in an FSMA retaliation action: What could otherwise constitute a “no-brainer” termination based upon insubordination may be an FSMA protected activity in disguise if related to a reasonable, though wrong, belief by the employee that the insubordination was motivated by a food safety concern. Indeed, the protected activity need only be shown to be one (of possibly several) factors contributing to the adverse decision in order for the complainant to prevail. Therefore, care must be taken to avoid even the appearance of unlawful retaliation.

What is an employer to do when faced with a potential FSMA violation? First, to the extent feasible, taking positive action toward an employee or former employee can diffuse a heated situation, or can later be offered as potent proof of non-retaliation.

For example, if it is manageable, an offer of reinstatement can seriously undercut, if not eviscerate an otherwise actionable claim. Employees should be lauded for bringing good faith concerns to the attention of the employer. If the concern is invalid, rather than dismissing the employee’s concern, a meeting with the employee to educate him or her on why the concern is misguided may prevent an adversarial situation later on.

Of course, consistent enforcement of employment policies, honest and corroborated performance reviews and thorough documentation maintained in the personnel files goes a long way toward avoiding protracted litigation.

Elizabeth A. Cordello is an associate in Underberg & Kessler’s Litigation and Labor & Employment practice groups. She concentrates her practice in all aspects of labor and employment law litigation, compliance and counseling.