Food industry employers may need to take a hard look at their processes for handling employee complaints about perceived food safety issues, given the provisions of a new interim final rule about how whistleblower complaints will be handled in the future.
The new rule, published February 19 by the Occupational Safety and Health Administration (OSHA), makes it easier for an employee to establish a whistleblower case under the Food Safety Modernization Act’s whistleblower protection provisions. According to Attorney Linda Jackson, a shareholder at Littler Mendelson, an employment law practice in Washington that has written a client alert analyzing the effect of the new rule on employers, the rule lowers the standard for what employees need to prove when they make a complaint.
“An employee will just have to have an objectively reasonable belief that something has happened that they think is a violation or a potential violation of the act,” Jackson says. “The game changer is that this new rule adopts a more lenient standard for retaliation claims, creating the potential for more claims and a greater exposure to liability, particularly arising out of complaints that one might view as everyday complaints about work-related issues in these environments.”
Food industry companies should take two important steps to respond to the new rule, according to Jackson. First, make sure there is a process in place to respond appropriately to an employee’s complaints about potential food safety violations. A documentation process that can show how the investigation of the complaint was handled and resolved is vital.
“Employers need to be able to show that they investigated a complaint and addressed it in an appropriate way. This process should include training first-line supervisors about these processes, including training about how important it is to deal with a complaint in a serious and professional way,” she says.
Second, employers should be able to show that any adverse action subsequent to the complaint, such as an employee’s termination or demotion, was independent of that complaint. Performance documentation processes should be uniform for all employees. “A company that has a performance process in place, with memos in the file about performance-related issues, can then hand those to OSHA in response to a complaint,” Jackson says.
With increased focus on whistleblower provisions, employers are beginning to understand the need to create a culture of compliance “where employees can bring issues to you and can trust that you are going to take them seriously, resolve them appropriately, and that you will not react in a retaliatory way,” she says.
OSHA is accepting comments about the final rule until April 14, 2014.