Tuesday, April 15, 2014

My comments on OSHA’s rules for food safety whistleblowers

Yesterday, I submitted comments to the Occupational Safety and Health Administration (OSHA) about the agency's rules for handling food safety whistleblower cases.  In 2008, nine people died as a result of Salmonella contamination of peanut butter. Another 705 were sickened. This outbreak, together with others affecting spinach and eggs, prompted Congress to pass the FDA Food Safety Modernization Act (FMSA) in 2011. 

Section 402 of FMSA creates a whistleblower protection for employees who raise food safety concerns or participate in safety proceedings. 21 U.S.C. § 399d. Congress wisely understood that the public will be better protected if workers are free to raise safety concerns without fear of reprisals.
On February 13, 2014, OSHA issued interim regulations for handling whistleblower complaints under the FSMA. In its Summary and Discussion of these rules, OSHA recognized “the remedial purposes of FSMA[.]” However, it did so only in the text referencing 29 CFR § 1987.105. My first comment to OSHA was that the remedial purpose of the FMSA should be prominent in any decisions under the FSMA. 

Foodborne illness kills about 3,000 Americans a year, and hospitalizes 128,000 more. Another 48 million Americans are sickened every year by food contamination. Congress passed the FSMA to protect people from getting sick and dying. Decision-makers need to understand the serious consequences of unsafe practices and nurture a culture that encourages safety concerns.

Helpfully, the Summary and Discussion recognizes that the reasonable belief doctrine will apply by saying, “a complainant's whistleblower activity will be protected when it is based on a reasonable belief that any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C, has been violated.” Under the reasonable belief standard, whistleblowers do not have to show that an actual violation was going to occur. They only have to show that they had a reasonable basis for their food safety concern. 

An employee’s “belief must be reasonable for an individual in [the employee’s] circumstances having his [or her] training and experience.” Melendez v. Exxon Chems., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 28 (ARB July 14, 2000); Sylvester v. Parexel Int’l, ARB No. 07-123, 2011 WL 2165854, at 14 (ARB, May 25, 2011). As most employees in the food industry will not have training about the coverage of the Food, Drug and Cosmetic Act, they should be protected for raising any food safety concern.

My second comment to OSHA objected to one sentence of 29 C.F.R. § 1987.110(a). This sentence states, “The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived.” Since a petition for review has to be filed within 14 days of an ALJ decision, whistleblowers and their attorneys are often scrambling to review the entire record for the legal issues they want to appeal. This type of rush is not required in normal federal appeals. An appellant only has to file a notice of appeal on time. Some courts require an information form with a statement of issues, but the parties are not bound by that. Only when a party submits a final brief is the party limited to the issues raised.

I recognize that OSHA wants parties to identify legal issues that show the petition is worthy of full briefing. However, this purpose can be fully served by requiring a petitioner to show that the petition raises sufficient issues without requiring a list of every issue that will be raised. The rule as written creates an unnecessary procedural hurdle that will trip up some whistleblowers and some employers and keep them from getting a decision on the merits.

I asked OSHA to change this sentence to say, “The parties should identify in their petitions for review the legal conclusions or orders to which they object so that the Administrative Review Board may determine that the review presents issues worthy of full briefing.”

One employer, Paramount Farming Company, had its lawyer submit comments. The company grows pistachios and almonds in California. The company wants to have copies of all information OSHA receives during an investigation, and it also wants the right to have a confidentiality clause in a settlement agreement. It appears to me that this company does not yet understand what a truly safety conscious work environment is like. I foresee that it will have to have more experience with whistleblowers before it appreciates how they can make the company and its customers safer.

Congress is giving the Department of Labor the opportunity to demonstrate that it can be a better forum for whistleblowers than the U.S. District Courts.  In a well-managed program, whistleblowers can find adjudications that are fair and in furtherance of the remedial purpose of the law.  They should not have to educate the OSHA investigators or ALJ’s about the applicable laws and their purposes. They should find professional attention that understands the common indicators of unlawful reprisals. They should receive determinations that are comparable to those of federal courts, but through a process that is cheaper, easier and focused on the particular needs of whistleblower cases. While it is preferable to have determinations issue more quickly, having determinations that are correct is more important. If the Department can make its program the better option for whistleblowers, then the remedial purpose will be fulfilled.

By Richard Renner

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