New Whistleblower Protections for Employees in the Food Industry

In 2011, food industry employers should be prepared to address the many new whistleblower protections that were enacted by Congress last year.  Congress included new whistleblower protections in a number of newly enacted statutes, such as the FDA Food Safety Modernization Act (the "Act").  The Act, which was signed into law by President Obama on January 3, 2011, includes an expansive new protection for whistleblowers in the food industry.

Covered Persons

Section 402 of the Act prohibits any entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food from terminating or discriminating against an employee who engages in certain whistleblowing activities.

This provision of the Act is effective immediately.

Covered Activities

Covered employees are protected from retaliation for:

• Providing information to the employer, federal government, or a state attorney general about any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of the Act, or any order, rule, regulation, standard, or ban under the Act
  
•  Testifying in a proceeding concerning such a violation
  
•  Assisting or participating in such a proceeding
  
•  Preparing to engage in any of the above activities
  
•  Objecting to, or refusing to participate in, any action the employee reasonably believes to be in violation of the Act or any order, rule, regulation, standard, or ban under the Act.

Notably, covered employees are protected from retaliation for having provided information about a violation of the Act regardless of whether they made such a report on their own initiative or as part of their job duties.

The Act does not protect those employees who deliberately cause a violation of the Act, unless the employee was acting on direction from the employer or the employer's agent.

Claims Process and Remedies

Employees who believe they have been discharged or discriminated against in violation of this whistleblower provision may file a complaint with the Department of Labor (DOL) within 180 days after the alleged violation.  The Act authorizes the DOL to investigate complaints and order appropriate relief for violations. 

If the DOL does not issue a final order within 210 days after the date a complaint is filed, the claimant can bring suit in federal district court, where a jury trial is permitted.  Upon finding a violation, the DOL or a federal court may award to a successful claimant reinstatement, back pay with interest, special damages, and litigation costs and attorneys' fees.

This whistleblower protection also imposes an employee-friendly burden-shifting regime.  If the employee can establish a prima facie case by showing that his or her participation in a protected activity was "a contributing factor" in an adverse employment decision, then the employer has the burden to rebut the employee's prima facie case by clear and convincing evidence that it would have taken the same action in the absence of the employee's whistleblowing.

Unlike most other federal whistleblower causes of action, the Act provides an employer nominal relief when an employee makes a frivolous complaint.  Upon finding that an employee has made a complaint about a violation of the Act that is either frivolous or has been brought in bad faith, the DOL may require the employee to pay the employer a reasonable attorneys' fee of up to $1,000.

Conclusion

The Act promises to have a significant impact on employers in the food industry in part because of the new whistleblower protection now available to employees under the Act.  Employees in the food industry now have an expansive new federal cause of action available to them, with the potential to recover significant damages.  Employers in the food industry would be well advised to consider implementing whistleblower policies or revisiting their existing policies, reviewing discipline and discharge policies and procedures, and educating managers about these whistleblower protections.