Quirky Question #257, Food for thought – whistleblowing claims against agricultural companies


My company manufactures food products and is thus regulated by the Food and Drug Administration (FDA).  Last month, we terminated an employee because of his chronic poor performance. I just learned that the day before he was terminated, the employee told his supervisor that he believed our company was not complying with the FDA’s nutrition label requirements. Are we at risk that he will bring a whistleblower claim?

Answer:  By Gabrielle Wirth and Bobbi Leonard

Gabrielle Wirth

Gabrielle Wirth

Bobbi Leondard

Bobbi Leondard

You are right to be concerned. Under the FDA Food Safety Modernization Act (FSMA), employees who work for entities engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food are protected from retaliation for reporting alleged violations for the Federal Food, Drug, and Cosmetic Act, including the Act’s labeling requirements. Employees who believe they have been retaliated against in violation of FSMA may file a complaint with OSHA.

If the former employee files a complaint, OSHA will investigate the issue only if it finds that the employee, through the complaint and through interviews, has shown that he (1) made a protected complaint, (2) suffered an adverse employment action, such as termination, and (3) that the circumstances were sufficient to raise the inference that thshutterstock_89703592e protected complaint was a contributing factor of the adverse employment action.

In order to defend against a whistleblower claim by the employee, it will be critical to show that you had planned to terminate the employee before his complaint was ever made. Any emails, memos, or meeting minutes outlining the planned termination will be helpful.

Note that the FSMA does have a time limit for filing a complaint, which is 180 days after the alleged retaliatory action. Thus, your former employee has a few more months to file his action before his eligibility to make a claim expires.

Another issue to keep in mind is how state law might also provide a viable claim for your former employee in this circumstance. Although you didn’t say what state your company is in, most states allow former employees to bring claims for wrongful discharge against an employer when an employee believes he was fired for engaging in statutorily protected right to complain. For example, California, Washington, Colorado, Utah, North Dakota, and Minnesota all allow such a cause of action. The timeframe in which an individual can bring a claim under these states’ laws ranges from 180 days to 3 years from the date of the alleged violation.

As always, be sure to train your supervisors and managers to escalate whistleblower-type complaints like the one your employee made. You want to know about these potential issues so you can investigate the claims and make sure your company is in compliance with the law.

Gabrielle Wirth

Employers turn to Gabrielle for guidance on how they can comply with the technical employment laws in California, Montana and nationwide while meeting their business needs. Her successful trial experience in a broad range of employment disputes includes wage and hour, whistleblower, wrongful termination, discrimination, harassment, retaliation, breach of contract, and trade secret/noncompetition cases. She also represents employers before a wide variety of state and federal agencies including the EEOC, OFCCP, state human rights agencies, the Labor Commission, the Employment Development Department and OSHA.

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