New Whistle-blower Protection in Food Safety Bill S 510

The U.S. Senate passed a bill on November 30, 2010, that passed into law will impose stricter food safety standards and more authority to the Food & Drug Administration to regulate tainted food. Included in the Food Safety Modernization Act, Senate Bill 510, at Section 402, are protections for employees of an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. The protections of the proposed law will protect an employee that has:

  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.

Where the employee has made one of the protected disclosures, the employer may not in any manner discriminate against the employee with respect to the compensation, terms, conditions or other privileges of employment. This provision will likely include protection against adverse actions similar to other non-retaliation laws which prohibit termination of employment, suspension, demotion, pay cuts, denial of promotion, rejection of employment upon application, and the like when such actions are motivated in substantial part by the protected disclosure.

The remedies provided include injunctive relief (an order to stop the unlawful retaliation), reinstatement, back pay with interest, special damages, attorney’s fees, litigation costs, and expert witness fees.

The procedure to file a complaint for a violation of this proposed law requires filing with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act. OSHA must then conduct an investigation and can order relief. The OSHA order is then subject to appeal by either party to an administrative law judge with the Department of Labor, whose order can then be appealed to an appeals review board, whose order can then be appealed to the federal district courts.

The House of Representatives passed a similar bill earlier this year, H.R. 2749. The two bills must now be reconciled and voted on again. The consolidated bill should pass in 2011.

Comments are closed.