Food Safety Bill Contains Whistleblower Protections for Industry Employees

Buried in the food safety bill that recently passed the Senate is provision granting employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food whistleblower protection rights. The whistleblower provisions contained in the food safety legislation reflect the continuing effort by Congress to expand whistleblower protections. Section 402 of the FDA Food Safety Modernization Act (S. 510),  would make it unlawful for an employer in the food industry to:

discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee) --

(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
(2) testified or is about to testify in a proceeding concerning such violation;
(3) assisted or participated or is about to assist or participate in such a proceeding; or
(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.

An aggrieved employee would have 180 days to file a complaint with the Department of Labor (DOL). If the DOL does not act within the stipulated timeframe, the employee would be entitled to file a civil complaint in federal court.

The employee would have to prove only that his or her protected actions constituted a “contributing factor” to the employer’s adverse employment decision. To rebut such claims, an employer must demonstrate “by clear and convincing evidence” that it would have taken the same unfavorable personnel action regardless of the employee’s protected activity. A prevailing employee would be entitled to reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination; the amount of back pay, with interest; and compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees. If, on the other hand, the DOL were to find that the claim brought by the employee was frivolous or brought in bad faith, an employer could be awarded up to $1,000 in attorneys’ fees.

The legislation also reflects continued Congressional scrutiny of mandatory arbitration agreements. The bill provides that the whistleblower protections may not be waived by any agreement, policy, form or condition of employment.

The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.

The Senate approved this bill on November 30, 2010 by a 73 – 25 margin. The measure has not yet advanced in the House of Representatives due to procedural objections. 

Photo credit: Lkmorlan

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.