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The Food Safety Modernization Act

On January 4, 2011, President Obama signed into law the FDA Food Safety Modernization Act (the "Act").  This Act amends the Federal Food, Drug, and Cosmetic Act ("FFDCA") with the stated purpose of improving food safety "from farm to table." Section 402 of the Act provides broad whistleblower protection for employees engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. Protected Conduct. Whistleblowers may not be discharged or otherwise suffer adverse employment actions for engaging in certain protected activity such as when an employee:

  1. provides information regarding conduct the employee reasonably believes to be a violation of, any provision of the Federal Food, Drug and Cosmetic Act ("FDCA") or any order, rule, regulation, standard, or ban under the FDCA;
  2. testifies, or is about to testify, in a proceeding concerning such violation;
  3. assists or participates, or is about to assist or participate, in such a proceeding; or
  4. objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believes to be in violation of any provision of the FDCA, or any order, rule, regulation, standard, or ban under the FDCA.

Good Faith Belief. An employee need not disclose an actual violation of food safety laws so long as he has a reasonable belief one is occurring and he suffers discrimination as a result.  In other words, even if an employee is mistaken in his belief the conduct is protected. Standard of Proof. These protections are typical of many whistleblower protections, and are nearly identical to Title X of the Dodd-Frank Consumer Protection Act signed by President Obama last July and previously discussed here.  Like the Consumer Protection Act, an aggrieved whistleblower only need show the protected activity was a contributing factor in the employer's decision to discriminate.  Thus, even if an employer has legitimate reasons for the adverse employment action, as long as the employer was influenced at least in part by a retaliatory motive, its conduct is illegal.  However, it is a defense if the employer is able to show by clear and convincing evidence they would have terminated (or demoted or taken other such similar actions) against an employer even had the employer not blown the whistle. Remedies. The Act provides remedies to employees including reinstatement of the employee to his prior position (or prior conditions of employment such as hourly rate seniority status or other benefits), back pay, compensatory damages, costs and reasonable attorneys fees. Deadlines. A whistleblower must file a complaint of retaliation under the Act with the Department of Labor ("DOL") within 180 day of the retaliatory act. If the DOL has not issued a final decision within 210 day after the complaint is filed, the whistleblower may file a lawsuit and have the case heard by a jury. The Act suffers from a major infirmity of much of the whistleblower and anti-discrimination legislation and that is the requirement the whistleblower file an administrative complaint with the government. Under many laws this is the only avenue available to the whistleblower. At least the Act provides a jury trial when the DOL does not reach a timely decision. GSF

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