Volume 2, Issue 6 - March 31st, 2014

OSHA has issued interim final rules for handling employment retaliation complaints under the Food Safety Modernization Act that will make it more difficult for employers to defend themselves against food safety-related whistleblower claims.

The FSMA prohibits any “entity” engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food from discharging or discriminating against an employee who provides information about an FSMA violation.

A big issue for employers is that the rules place a bigger burden of proof on them. The law requires an employee to show only that the whistleblower activity was a contributing factor in the adverse action taken by the employer.

The employer, in turn, must demonstrate by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected activity. If the employer meets this burden, the OSHA investigation will end.

To meet the “clear and convincing” evidence standard, an employer must show it is “highly probable or reasonably certain” it would have taken the same adverse action absent the employee’s protected activity.

In addition, the employee burden is met if the complaint on its face, supplemented through OSHA interviews with the employee, alleges that facts and direct or circumstantial evidence exist.

The rules explain that the complaining employee can meet this burden simply by alleging the adverse action took place shortly after his or her protected activity, or even years later, if the employer did not have an opportunity to retaliate until then.

A full copy of the interim rules can be found here:www.gpo.gov/fdsys/pkg/FR-2014-02-13/pdf/2014-03164.pdf.. Public comments are due by April 14.