Date: Feb 20, 2014
A Silver Whistle

The Occupational Safety and Health Administration (OSHA) posted its interim final rule regarding the handling of retaliation complaints under the whistleblower provisions of the Food Safety Modernization Act (FSMA). Section 402 of the FSMA, which applies to an “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food” protects workers who report or testify about food safety concerns against retaliation and ensures food safety concerns raised by employees are taken seriously.       

OSHA’s interim rule clarifies that an employee need not demonstrate that an actual violation of the law has occurred. Rather, an employee is entitled to protection from retaliation if the employee makes a complaint or raises a concern based upon a reasonable belief a violation of Food, Drug and Cosmetic Act has occurred. The interim rule includes procedures and time frames for employee complaints to OSHA, OSHA investigations, appeals from OSHA determinations, and administrative law judge (ALJ) hearings.

A covered employee has 180 days to file a complaint with the Secretary of Labor, which is followed by written notice of the allegations to the respondent.  After investigating the charges in the complaint, the Labor Secretary will issue written findings after which the complainant and respondent have 30 days to file objections to the findings and/or preliminary order and request a hearing before an ALJ. The interim rule also includes procedures and time frames for Administrative Review Board review of ALJ decisions and judicial review of the Labor Secretary’s final decision.

The procedures set forth in the interim rule are consistent with the regulatory provisions of other whistleblower regulations promulgated by OSHA. OSHA’s interim rule went into effect on February 13, 2014. Comments to the interim rule must be made by April 14, 2014.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel

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