FSMA whistleblower clause protects those who report problems

Before the Food Safety Modernization Act, no protection from retaliation existed for privately employed food and agriculture workers who took action because of concerns about food safety.

Section 402 is the FSMA’s answer to that problem. It gives those employees protection from being discharged or punished for carrying out their job responsibilities  that involve food safety.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) enforces the FSMA’s whistleblower provisions. OSHA administers more than 20 federal whistleblower protection laws. All the statutes prohibit retaliation against employees who shed light on unsafe or unhealthy conditions or who exercise their other rights under the specific acts.

And unlike many other provisions of the FSMA that have required years of rule-making process to take effect, Section 402 became enforceable on the day President Obama signed the new food safety law, Jan. 4, 2011.

OSHA has been taking complaints from food and agricultural workers ever since, just as it does with other private sector employees such as those involved in the safety of water, pipelines and toxic substances.

Lives destroyed

If your job involved food safety before 2011, there was no place you could tell your story and be sure you would not be doing yourself more harm than good. People in the food safety arena remember what happened to Kenneth Kendrick before Congress extended whistleblower protections in the FSMA.

Kendrick is the former production planner who tried to get someone to listen to him about the risky and unethical practices he discovered while working at a Texas peanut processing facility owned by the now-defunct Peanut Corporation of America (PCA).

He tried to get someone in government, industry or the media interested in what was happening with PCA well before the company’s contaminated peanut products sickened thousands and killed at least nine.

Once that tragedy unfolded, Kendrick was in demand for interviews as everyone wanted to hear from an insider about how the PCA bosses were lying when they said the company had rigorous testing and never found Salmonella in any of their plants.

“People should know,” Kendrick told CNN in 2012, “just how tough life can be for people who do the right thing. My family and I now live in poverty, as many Whistle Blowers often do, and doing the right thing destroyed my life.”

Kendrick is on the circuit as a speaker about whistleblowing and went on to become the Green Party’s candidate for Texas Agriculture Commissioner in 2014.

Whether more recent whistleblowers have it any better now is not known, but OSHA has generated six years of data on the FSMA 402 complaints, from 2011 to 2016.

The statues it enforces “contains whistleblower or anti-retaliation provisions” that provide that employers “may not discharge or retaliate against an employee because the employee has filed a complaint or otherwise exercised any rights provided to employees.”

A total of 280 food and beverage workers filed FSMA whistleblower complaints with OSHA between 2011 and 2016. OSHA statistics show 62 of those filings were “settled or settled” out positively for the employee. Federal courts took over in two other cases.

Fifty cases remained unresolved at the end of 2016. At least 165 others were either withdrawn or dismissed. Failure to respond to OSHA’s additional requests for information is a frequent cause for dismissal.

The FSMA whistleblower law says “no entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food may discharge an employee or otherwise discriminate against an employee” if it involves “any violation” of any act or omission the employee reasonably believes to be a violation of any provision of the FSMA.” In such circumstances, the employee acting “at the employee’s initiative or in the ordinary course of the employee’s duties” is protected.