House Approves Bill Granting Food Industry Employees Whistleblower Rights

On Tuesday, the House of Representatives approved by a 215 – 144 margin the FDA Food Safety Modernization Act (H.R. 2751), legislation that, among other things, provides whistleblower protections to employees involved with the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. Although the Senate had passed this measure in November, the bill was later invalidated for technical reasons. Meanwhile, on December 9 the House approved a continuing appropriations bill that contained the food safety provisions. In a surprise vote last Sunday, the Senate re-approved the standalone bill by unanimous consent.

The whistleblower provisions are contained in Section 402 of the bill. Specifically, this section 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.

This section provides aggrieved employees with the ability to file a complaint with the Department of Labor, and, if the complaint is not resolved in a specified amount of time, a civil action in federal court. To prevail on a claim under this section, an employee would need 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. Remedies for violations of this section include reinstatement to the same position, backpay, other compensatory damages if applicable, costs and attorneys’ fees. An employee who brings an action in bad faith could face a $1,000 penalty.

President Obama is expected to sign this bill into law.

UPDATE:  On Tuesday, January 4, 2011, President Obama signed this bill into law.