Food Safety Whistleblower Bill Passes One House of Congress
On November 30, 2010, the U.S. Senate passed Senate Bill 510, the FDA Food Safety Modernization Act ("S.B. 510" or "bill"). The bill would amend the Federal Food, Drug, and Cosmetic Act ("FFDCA") with the stated objective of improving food safety and the FDA's ability to detect food safety problems. As discussed in greater detail below, this bill is significant in the employment law context because it provides whistleblower protection for employees. Indeed, S.B. 510's whistleblower provisions are remarkably similar to certain whistleblower protections included in the recently-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act, also known as the Consumer Financial Protection Act, Pub. L. 111-203, signed by the President on July 21, 2010.
If S.B. 510 were enacted, covered employees would be those working for entities engaged in the manufacturing, processing, packing, transporting, distribution, reception, holding, or importation of food. Under the Act, it would be unlawful for employers to discriminate with respect to an employee's compensation or other terms and conditions of employment because the employee:
An aggrieved "whistleblower" would have 180 days after the date of alleged discrimination to file a complaint with the Secretary of Labor. An investigator assigned to the matter would, after looking into the allegations, issue an initial determination on "reasonable cause." If the investigator were to find "reasonable cause," a preliminary order granting the complainant reinstatement would be issued. If no timely objection were filed, the preliminary order would become final. A party could an appeal a "reasonable cause" determination within 30 days.
If a timely objection to a "reasonable cause" determination were filed, an evidentiary hearing would be conducted before an administrative law judge, who would then issue an order. An ALJ's decision could then be appealed to a federal court of appeals within 60 days of the issuance of the final order.
As S.B. 510 is written, if an ALJ does not issue a decision with 210 days of the filing of the original complaint and within 90 days of the investigator's initial determination, the complainant would be free to file a federal court lawsuit. The case would be tried de novo, to a jury.
An employer would have a complete defense to a complaint filed with the Secretary of Labor if it could demonstrate that it would have taken the same personnel action with respect to the "whistleblower" in the absence of his or her protected activity.
Remedies available under the Act would include reinstatement of the employee and/or reinstatement of pre-violation terms and conditions of his or her employment, back pay, compensatory damages, and costs and attorney fees.
S.B. 510, if enacted, would require the Secretary of Health and Human Services to issue a variety of regulations. These would relate to, among other topics: (1) food and produce safety, specifically minimum standards for the safe production and harvesting of raw agricultural commodities; (2) sanitary transportation practices for the transportation of food; and (3) the importation of food and requiring U.S. importers to perform risk-based foreign supplier verification activities to ensure that imported food is produced in compliance with applicable safety standards and is not adulterated or misbranded. The bill would expand the authority of the Secretary of Health and Human Services to inspect records related to food and authorize the Secretary to suspend the registration of food facilities if food held by a facility had a reasonable probability of causing adverse health consequences. The Secretary would also be able to order a party to immediately cease distribution of an adulterated or misbranded article of food and/or order a food recall (after a hearing).
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©2011 Sherman & Howard L.L.C. January 4, 2011