October 22, 2016

OSHA Issues Rules for Retaliation Complaints Under FSMA

The Occupational Safety and Health Administration (OSHA) today published a final rule establishing procedures for retaliation complaints under the Food Safety Modernization Act (FSMA). This part of FSMA, which was signed into law by President Obama in January 2011, protects employees who “blow the whistle” about potential violations of the Food, Drug, and Cosmetic Act from retaliation by employers.

WhistleAssistant Secretary of Labor for OSHA Dr. David Michaels said in a statement, “food industry workers must never be silenced by the threat of losing their jobs when their safety or the safety of the public is at stake. This rule underscores the agency’s commitment to protect the rights of workers who report illegal activity in their workplace.”

The final rule was made effective on April 18, 2016. Tee Secretary of Labor is responsible for enforcing the employee protection provision set forth in section 1012 of the FD&C.

These provisions allow a covered employee to file, within 180 days of the alleged retaliation, a complaint with the Secretary of Labor. The Secretary must then provide written notice to the person or persons named in the complaint alleged to have violated the FSMA, including the allegations, the substance of the evidence, and the rights afforded to the respondent. The complainant and respondent have an opportunity to submit a response and meet with the investigator to present statements from witnesses. An investigation will then be launched.

The investigation will only be conducted if the complainant has had a “prima facie showing” that the activity was a contributing factor in the adverse action. After the investigation is completed, if the Secretary finds that retaliation has occurred, the respondent may be ordered to: take action to abate the violation, reinstate the complainant to his or her former position together with compensation, and restore the terms, conditions, and privileges associated with that employment. Compensatory damages to the complainant, as well as all costs and expenses, may be awarded.

Appeals may be filed to object to the findings and preliminary orders, and to request a hearing before an administrative law judge at the Department of Labor. Final orders will then be issued after 120 days. After the final order is issued, any person “adversely affected or aggrieved” by the Secretary’s final order may file an appeal with the U.S. Court of Appeals in the circuit where the complainant resided. If any person fails to comply with a preliminary order or a final order, the Secretary may file a civil action seeking enforcement of the order.


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