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Food Safety Whistleblower Regulations on the Way

Otto von Bismarck once said, “Laws are like sausages, it is better not to see them being made.” Fortunately, the government that makes the laws does want to see the sausage being made and, as such, has instituted new regulations that protect employees in various levels of the food industry from facing retaliation for reporting practices that are unsafe, unsanitary or otherwise violate the Food, Drug and Cosmetics Act.

The Food, Drug and Cosmetics Act, as amended by the Food Safety Modernization Act (FSMA), has prohibited retaliation against food industry whistleblowers since 2010. However, it was only in February of 2014 that the Occupational Safety and Health Administration (OSHA) provided interim regulations to put those changes into effect. Under these laws and regulations, whistleblowers receive protection from retaliation by their employers for reporting violations of food safety regulations:

  • It is unlawful for a covered food industry company to discipline, threaten or take any type of adverse action against an employee for reporting violations of federal food safety standards to his or her employer, the federal government or a state attorney general.
  • Employees must file a complaint with OSHA in writing no more than 180 days after the occurrence of the retaliatory conduct.
  • OSHA must make a determination within 60 days and may order relief including but not limited to reinstatement, lost wages and restoration of benefits.
  • Either side may demand that OSHA’s determination be reviewed by an administrative law judge within the Department of Labor. The judge’s determination is appealable to the DOL’s Administrative Review Board.
  • The final decision of the Department of Labor, usually that of the Administrative Review Board, is appealable to the appropriate United States Court of Appeals. Employees may also file a civil action in federal court if OSHA fails to issue a determination within the required time period.

The government has increasingly come to appreciate how conscientious whistleblowers can increase its regulatory effectiveness. Despite these protections, however, informants should always contact an experienced Dallas whistleblower attorney before taking action.

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