Hunton Employment & Labor Perspectives

On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.

The Secretary of Labor is charged with enforcing the FSMA’s whistleblower protections, including awarding the appropriate relief.  If after receiving a retaliation or whistleblower complaint the Secretary concludes that there is reasonable cause to believe that a violation of Section 402 has occurred, the Secretary may issue among other relief an order reinstating the employee and providing for back pay. If the Secretary has not issued a final decision within 210 days after filing of the complaint, the employee may file a complaint in federal district court seeking reinstatement, back pay, and “compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorneys’ fees.”  Food Safety Modernization Act, Pub. L. No. 111-353, § 402(b)(4)(B)(iii.), 124 Stat 3885, 3970.

While the majority of the FSMA does not become effective until 2012, the whistleblower provisions of the FSMA became effective immediately upon the law being signed by President Obama. Given its sweeping nature and broad protections, any entity potentially covered by the FSMA—which includes essentially any entity in the food industry—should consider  adopting strong anti-retaliation policies (including the provision of alternative avenues for an employee to complain), advising its managers and supervisors of the company’s anti-retaliation prohibitions, and providing training to all managers and supervisors educating them on the policy and on ways to avoid even the appearance of retaliation. 

Section 402 is the latest expansion of strong anti-retaliation whistleblower protection for employees in an increasing number of industries. Its passing illustrates again the need for employers to be mindful of the potential exposure and reputational harm from whistleblower lawsuits, and to adopt strong anti-retaliation policies and implement appropriate training programs.