On April 18, 2016, the Occupational Safety and Health Administration published its final rule, titled Procedures for Handling Retaliation Complaints Under Section 402 of the U.S. Food and Drug Administration Food Safety Modernization Act. OSHA’s final rule details the agency’s procedures for investigating retaliation complaints under the FSMA.
Among other amendments, the FSMA modified the Federal Food, Drug and Cosmetic Act (FD&C Act) by adding protection for employees who raise concerns about potential food safety issues. The FSMA whistleblower provision specifically covers any employee in the food industry who provides an employer, the federal government or a state’s attorney general with information that the employee reasonably believes to represent a violation of any provision of the FD&C Act. Congress placed responsibility for enforcing the FSMA’s whistleblower provision upon the U.S. Department of Labor, rather than the FDA.
To file a retaliation complaint under the FSMA, an employee must notify OSHA, either orally or in writing, that an employer allegedly took retaliatory action against the employee and that the employee is requesting OSHA to conduct an investigation. Employees must file retaliation complaints within 180 days of the alleged retaliatory activity. Once OSHA receives a complaint, the agency must notify the respondent within 60 days. On the basis of that complaint and information obtained in a follow-up interview with the complainant, OSHA must determine if the complainant states a proper claim that the FSMA retaliation provision was violated.
OSHA must essentially engage in a “gatekeeper” function and dismiss any complaints where the employee has not properly alleged the elements of a whistleblower complaint which include allegations that: (1) the employee participated in protected activity under the FSMA; (2) that the employer either knew of or suspected the existence of protected activity; (3) the employee suffered an adverse action; and (4) the protected activity was a contributing factor in the adverse action. An employee may meet the burden of showing that his or her protected activity was a contributing factor in the adverse action simply by alleging that the employer took adverse action within temporal proximity to the employee’s protected whistleblower conduct.
OSHA must dismiss the case if the respondent shows by “clear and convincing” evidence that it would have taken the same action in the absence of the protected activity. If the case proceeds, OSHA must issue “written findings” and a preliminary order. If OSHA makes a finding that a complaint is meritorious, it may order a number of different remedies such as reinstatement, back pay and compensatory damages. Once OSHA has issued its findings in a preliminary order, both the complainant and respondent may file objections before an administrative law judge within 30 days.
If either party files an objection, then OSHA’s preliminary order is stayed pending an administrative hearing. If neither party requests a hearing within 30 days of filing their objections, the preliminary order will become final and is not subject to judicial review. After the hearing, OSHA has 120 days to issue a final order, which any aggrieved party can appeal for the following 60 days. Finally, if OSHA fails to issue a final decision within 210 days of receiving a complaint, an employee is permitted to sue in a U.S. district court. An employee may also bring suit in federal court within 90 days of an unfavorable written determination.
Overall, OSHA’s final rule is structured very similarly to other whistleblower/retaliation investigation procedures (i.e., similar prima facie case elements and burdens of proof) and generally follows the procedures outlined in OSHA’s Whistleblower Investigations Manual. OSHA’s final rule also relies substantially on federal case law to fill in information gaps. For example, in certain circumstances, the timeline for filing retaliation complaints can be tolled such that an employee might have more than 180 days to file a complaint. However, instead of providing detailed examples for when tolling would be warranted, OSHA states only “[t]he time for filing a complaint may be tolled for reasons warranted by applicable case law.”
Similarly, in identifying potential remedies available under the FSMA’s whistleblower provision, such as the possibility of an award for front pay, OSHA did not provide specific parameters for when front pay should be awarded in the regulations and instead stated “OSHA believes that relevant case law more appropriately addresses the parameters for issuing an award of front pay in lieu of reinstatement.”
The FSMA protects not only an employee who has already made a complaint, but also an employee who “is about to provide” information relating to a food safety issue. An employee can therefore raise a retaliation claim under the FSMA’s whistleblower provision without actually having provided information about a violation of the statute to the employer or enforcing authority. Investigating or responding to claims of retaliation that occurred as a result of actions the employee was “about to” take could be very difficult from a practical standpoint and OSHA’s procedures do not provide helpful guidance on the issue.
Additionally, due to the increasing volume of whistleblower and retaliation allegations in comparison to OSHA’s resources, there are often substantial delays in resolution of retaliation complaints, which could make OSHA’s procedural timeline for claims resolution overly ambitious. This in turn may lead more employees to bring their claims in federal court once the 210-day limit has expired.
Given the procedural complexity surrounding whistleblower complaints, employers should carefully examine each complaint in order to craft an effective defense. During this process, employers must also take care to mind the time limits set forth in these procedures, including the limitations for filing a response, filing objections, requesting a hearing, or noting an appeal, in order to preserve their defenses.