The Food Safety Modernization Act (FSMA) provides broad protection to whistleblowers. Section 402 of the statute applies to any person or entity engaged in manufacturing, processing, packing, transporting, distribution, reception, holding or importation of food, but it is not clear whether the provision applies to farms, at least until the food has been harvested.
The FSMA prohibits discharging or otherwise discriminating against an employee who engages in the following kinds of whistleblowing:
Providing or planning to provide information to the employer, the federal government, or a state Attorney General about a violation of the FMSA, or any order, rule, regulation, standard or ban under it.
Testifying or preparing to testify in a proceeding concerning such violation.
Assisting, participating, or planning to do so in any such proceeding.
Objecting to or refusing to participate in any activity that violates the FSMA.
The whistleblowing need not be the sole cause of the adverse employment action, merely a “contributing factor.” The whistleblower need not be correct about the violation. It is enough that s/he subjectively believed that action to be a violation of the FMSA and such belief was reasonable. The regulations borrow from the whistleblowing provisions of Sarbanes-Oxley.
The FMSA allows an employer an affirmative defense: regardless of the retaliation, the employer would have taken the same adverse action. The employer must prove that defense with clear and convincing evidence.
The statute has a rather cumbersome administrative procedure for enforcement. An employee who claims retaliation for whistleblowing may file a complaint within 180 days of the violation. The Secretary of Labor has delegated its responsibilities to the Occupational Safety and Health Administration (OSHA). OSHA has 60 days from the date of the complaint to issue preliminary findings.
If the preliminary findings are in favor of the employee, OSHA must include a preliminary order prescribing relief, which may include reinstatement. Any aggrieved party has 30 days to seek a hearing before an administrative law judge (ALJ). The hearing would be de novo and on the record. After the ALJ issues an order, within 14 days, any aggrieved party may appeal to the Administrative Review Board (ARB), which has discretion on whether to accept the appeal. If the ARB declines to hear the appeal, the administrative process is complete and the ALJ’s order is final. An aggrieved party then has 60 days to seek review in the court of appeals for the circuit in which the violation occurs.
Unless the administrative process proceeds with unusual celerity, however, the employee has an alternative route to federal district court. The employee may file an action in federal district court if there is no final ruling within 210 days of filing the complaint, or within 90 days of the date of the preliminary order. Review is de novo and any party may demand a jury.
On February 9, 2017, the delightfully-named Linda O’Risky filed a whistleblower lawsuit against Mead Johnson Nutrition Co. Ms. O’Risky was formerly a global compliance director for Mead Johnson. In early 2015, she learned of a defective seal on 8-ounce bottles of Mead Johnson baby formula. She alleged that she made repeated unsuccessful efforts to induce Mead Johnson to fix the problem and to report it to the FDA. She also alleged that Mead Johnson terminated her services in retaliation for her efforts and falsely claimed her position was eliminated as a result of a reduction in force.
Ms. O’Risky filed her administrative complaint on March 28, 2016. OSHA did not complete the administrative process within the required 210 days, thus enabling her to sue in district court.
FSMA whistleblower cases will likely be both expensive and difficult to defend. A discharged former employee is always a sympathetic plaintiff and proof that retaliation played at least some role in the termination is not hard to find. At best, the employer may find itself facing a red-light swearing match featuring the plaintiff’s testimony against that of his or her manager.
The best way to avoid whistleblower claims is strict compliance with the FSMA. An employer will never get summary judgment on the subjective issue of whether the plaintiff actually believed there was a violation. Whether that belief was reasonable, however, is an objective standard that can support summary judgment. If the employer can prove that it was in compliance with FSMA, plaintiff’s belief to the contrary is likely to be unreasonable.