A complaint against Brothers International Food Corp., brought by a former employee, alleges that the company fired the plaintiff in retaliation for raising safety and health concerns about its products. The June 6 complaint, filed in U.S. District Court for the Western District of New York, is the first to be filed in a federal court under the employee protection provisions of the Food Safety Modernization Act (FSMA), according to a public interest advocacy organization.
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The so-called whistleblower provisions enacted as part of FSMA state that employees of firms involved in food production or distribution cannot be terminated or otherwise retaliated against because they raise objections to practices they believe are in violation of the Federal Food, Drug and Cosmetic Act. While a number of FSMA cases have been brought forward since the legislation became law in 2011, this is the first to be filed in a federal court, says Amanda Hitt, director of the Government Accountability Project’s Food Integrity Campaign.
“This is the first opportunity for a private employee in the food sector to take advantage of the comprehensive whistleblower protections offered in FSMA,” Hitt says in an email to Food Quality & Safety. “The FSMA whistleblower provision contains robust language protecting whistleblowers and provides them with best-practices due process rights.”
Colin Chase, the plaintiff, was director of e-commerce for Brothers International before he was let go last July. The termination came after Chase raised health and safety concerns regarding the redating and sale of expired food products, including foods marketed to toddlers such as fruit crisps. Chase also raised questions about the possibility of bacterial contamination resulting from the rehydration of apple crisps. He was told that the “soggy” apple products would continue to be sold, and that customers who complained should receive a discount coupon for a future purchase, according to the complaint. Chase “was terminated in retaliation for pursuing such safety and health concerns,” the complaint alleges.
Shortly after Chase raised the safety concerns, the company began requiring employees to sign a nondisclosure agreement, says Chase’s counsel in the complaint, Elizabeth Cordello, Esq., of Underberg & Kessler LLP.
“Mr. Chase was being asked to sign a nondisclosure agreement that he was not comfortable with. The requirement that he sign such an agreement came at the same time that he was making these protective complaints. He was coming to our office to review that agreement, but unfortunately he was terminated before we could meet,” explains Cordello in an interview.
“I’m pleased that Colin Chase’s case will be the first to have been filed in federal court,” she continues. “Perhaps more employees out there, if they’re aware of workplace practices that aren’t conforming to protocol, will now have the courage to come forward with their cases as well.”
Cordello calls the employee protections of FSMA one of “our first lines of defense as it pertains to food, making sure that safe food reaches our tables.”
The following statement from Stephen J. Jones, Nixon Peabody LLP, Counsel for Brothers International Food was received by Food Quality & Safety on July 9 in response to the lawsuit:
“Brothers International was recently sued by a disgruntled former employee (Colin Chase) alleging retaliation under the Food Safety Modernization Act. The lawsuit is completely meritless and we look forward to getting it dismissed. We plan to file a motion asking the court to dismiss the case immediately. Mr. Chase’s allegation that he was terminated in retaliation for raising concerns about the moisture content of certain products is totally baseless. Brothers terminated him for a completely legitimate reason that had nothing whatsoever to do with any such complaint.