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OSHA Announces Rules for Food Safety Whistleblowers

By Joseph A. White

In January 2011, President Obama signed into law the FDA Food Safety Modernization Act (FMSA). The FSMA protects employees from retaliation for reporting food safety issues to their employer or to the government.  The U.S. Occupational Safety Health Administration (OSHA) is responsible for enforcing the FMSA’s anti-retaliation provision. This month, OSHA published rules outlining how it will handle FMSA retaliation complaints.

The procedure roughly follows those used by the EEOC to address complaints of workplace discrimination:

• An employee must make a complaint to OSHA within 180 days of the alleged food safety violation;

• Within 60 days of the employee’s complaint, OSHA is to investigate and determine whether “reasonable cause” exists for a finding that retaliation occurred;

• Objections to OSHA’s finding must be submitted to the Department of Labor’s chief administrative law judge (ALJ) within 30 days;

• The ALJ must then review the evidence and make a decision within 14 days. The ALJ also determines whether the decision is appealable or final.

One facet of the FMSA which employers should keep in mind: to prevail on a claim, an employee need not prove an actual food safety violation. Rather, the FMSA protects an employee as long as he or she has an objectively reasonable, “good faith” belief that a food safety violation occurred.

The lesson: take food safety complaints seriously and document both the complaint and how you respond to it. If you punish employees who raise such issues, even if they are ultimately incorrect, you do so your own peril. And, as always, diligently document employees’ work performance issues so as to avoid allegations by disgruntled employees that their discipline or termination resulted from a food safety complaint.

Joseph A. White is a trial lawyer who advises hospitality industry employers on employment matters.

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