An interim final rule adopted recently by the Occupational Safety and Health Administration establishes procedures for handling retaliation complaints by employees who disclose information about possible violations of the Food, Drug and Cosmetic Act against businesses involved in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. The rule, published in the Feb. 13 Federal Register, implements provisions in the Food Safety Modernization Act, which was signed into law in January 2011. Although the interim rule took effect Feb. 13, OSHA has invited comments on it by April 14.
Under the 2011 legislation, employees would have to file complaints within 180 days of the alleged retaliation. OSHA would then notify parties named in the complaint of the allegations, providing an opportunity for response within 60 days.
As with other whistleblower regulations, OSHA could proceed with an investigation only after it determined that the employee has made a “prima facie” showing that the protected activity was a contributing factor in the alleged retaliation and that the employer has not demonstrated “through clear and convincing evidence” that it would have taken the same action otherwise. OSHA gives employees some leeway on establishing a prima facie case in that if the employee’s complaint is insufficient OSHA can supplement it by interviewing the employee.
If, after an investigation, OSHA substantiates the complaint it could issue a preliminary order to impose remedies, which could include:
- Taking affirmative action to abate the violation;
- Reinstating the employee to his former position and compensation, including back pay; and
- Providing compensatory damages
The complainant and company would have 30 days to file objections to the findings or preliminary order and request a hearing before an administrative law judge. Either party can appeal the judge’s decision to a federal appeals court. Also, if OSHA doesn’t issue a final decision within 210 days after the complaint was filed, the employee can ask a U.S. district court to review the complaint.
In the wake of recent statutory changes, OSHA has become much more involved in transportation in recent years. In July 2012, the agency finalized a rule adopted on an interim basis two years earlier that specifically protected employees who reported concerns involving commercial motor vehicle safety. That measure was authorized by a law enacted in 2007. Over the past several years, OSHA has hit a number of trucking companies with enforcement action against truck drivers and others. The most recent was last month when OSHA charged that Prime Inc. had inappropriately “blacklisted” a driver who had filed a worker’s compensation claim. The most expensive action against a carrier was for more than $1 million. More recently, the 2012 highway act known as MAP-21 included language protecting employees of motor vehicle manufacturers, parts suppliers or dealerships against retaliation or discrimination for reporting motor vehicle safety defects. OSHA currently plans to issue an interim final rule in October to implement the measure.