21 U.S.C. § 399d — Employee protections
submitted 88 years ago by Pub. L. 111-353 to r/title-21-FOOD-AND-DRUGS · 1,796 words · no verdicts yet
Food companies cannot punish employees for reporting food-safety violations, testifying, or refusing illegal orders. Workers can file complaints with the Secretary of Labor and later sue in federal court. Winners can get their jobs back, back pay, and damages.
(a) In general
No company that makes, processes, packs, transports, distributes, receives, stores, or imports food* may fire or discriminate against an employee. This ban covers pay, terms, conditions, or privileges of the job. It applies whether the employee acts on their own, as part of their normal duties, or through someone else acting at the employee's request. The ban protects an employee who: gives, or is about to give, information to the employer, the federal government, or a state attorney general about a violation — or a suspected violation — of this chapter or its rules; testifies or is about to testify about such a violation; helps with or takes part in a related proceeding; or objects to, or refuses to take part in, any activity, policy, or task the employee reasonably believes breaks this chapter's rules.
(b) Process
(1) In general
Someone who believes they were fired or discriminated against this way may file a complaint with the Secretary* of Labor within 180 days of the violation. Someone else can file it on their behalf. The Secretary must notify, in writing, the person* accused in the complaint — describing the complaint, the allegations, the evidence, and what happens next.
(2) Investigation
Within 60 days of the complaint, after letting both sides submit a written response and present witness statements to the Secretary's staff, the Secretary must start an investigation. The Secretary decides whether there's reasonable cause to believe the complaint has merit, and tells both sides in writing.
If the Secretary finds reasonable cause, the findings come with a preliminary order giving relief. Within 30 days, either side may object and ask for a hearing on the record; objecting doesn't pause any reinstatement ordered. Hearings must move quickly. If no one asks for a hearing within 30 days, the preliminary order becomes final and cannot be appealed.
The Secretary must dismiss the complaint, without investigating, unless the employee first shows their protected action was likely a factor in what happened to them. Even then, the Secretary skips the investigation if the employer proves, with clear and convincing evidence, it would have taken the same action anyway. The Secretary can only find a violation if the employee shows their protected action was a contributing factor. And no relief can be ordered if the employer proves, with clear and convincing evidence, it would have acted the same way regardless.
(3) Final order
Within 120 days after any hearing ends, the Secretary must issue a final order — granting relief or denying the complaint. The case can be settled at any point before that, if the Secretary, the employee, and the accused all agree.
If the Secretary finds a violation, the order must require the violator to fix the problem, reinstate the employee with back pay and the same job terms, and pay compensatory damages. If the employee asks, the Secretary must also make the violator pay the employee's reasonable legal costs, including attorney and expert witness fees. But if the Secretary decides the complaint was frivolous or filed in bad faith, the Secretary may make the employee pay the employer's attorney fees — up to $1,000.
(4) Action in court
If the Secretary has not decided the case within 210 days of filing — or within 90 days after telling the parties its written decision — the employee can sue instead, in federal district court, and ask for a jury trial. That court can order everything needed to make the employee whole: reinstatement with the same seniority, back pay with interest, and compensation for other losses like legal costs and attorney fees.
(5) Review
If the employee did not choose to sue directly, anyone unhappy with the Secretary's final order can ask a federal appeals court to review it, within 60 days of the order. Filing this appeal does not pause the order unless the court says so. A final order that could have been appealed this way cannot be challenged in any other criminal or civil case.
(6) Failure to comply with order
If someone ignores the Secretary's order, the Secretary can sue them in federal court to enforce it.
(7) Civil action to require compliance
The employee the order protects can also sue directly to force compliance. The court may award legal costs, including attorney and expert witness fees, to whichever side deserves them.
(c) Effect of section
This section does not remove any other legal protection against discrimination under federal or state law, or under a union contract. No employer can make an employee sign away these rights or remedies — not through any agreement, policy, form, or job condition.
(d) Enforcement
Courts can enforce any duty this section requires through a mandamus lawsuit under section 1361 of title 28.
(e) Limitation
This section's protections do not cover an employee who deliberately causes a violation themselves, acting on their own without the company's direction.
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 with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any person* acting pursuant to a request of the employee)—
provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this chapter or any order, rule, regulation, standard, or ban under this chapter, or any order, rule, regulation, standard, or ban under this chapter; 1
testified or is about to testify in a proceeding concerning such violation;
assisted or participated or is about to assist or participate in such a proceeding; or
objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this chapter, or any order, rule, regulation, standard, or ban under this chapter.
A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 180 days after the date on which such violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary* of Labor (referred to in this section as the “Secretary”) alleging such discharge or discrimination and identifying the person responsible for such act. Upon receipt of such a complaint, the Secretary shall notify, in writing, the person named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such person under paragraph (2).
Not later than 60 days after the date of receipt of a complaint filed under paragraph (1) and after affording the complainant and the person named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses, the Secretary shall initiate an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify, in writing, the complainant and the person alleged to have committed a violation of subsection (a) of the Secretary’s findings.
If the Secretary concludes that there is reasonable cause to believe that a violation of subsection (a) has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by paragraph (3)(B). Not later than 30 days after the date of notification of findings under this paragraph, the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record. The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any such hearing shall be conducted expeditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review.
The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under subparagraph (A) unless the complainant makes a prima facie showing that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.
Notwithstanding a finding by the Secretary that the complainant has made the showing required under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.
The Secretary may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.
Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.
Not later than 120 days after the date of conclusion of any hearing under paragraph (2), the Secretary shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, and the person alleged to have committed the violation.
If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has occurred, the Secretary shall order the person who committed such violation—
to take affirmative action to abate the violation;
to reinstate the complainant to his or her former position together with compensation (including back pay) and restore the terms, conditions, and privileges associated with his or her employment; and
to provide compensatory damages to the complainant.
If such an order is issued under this paragraph, the Secretary, at the request of the complainant, shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.
If the Secretary finds that a complaint under paragraph (1) is frivolous or has been brought in bad faith, the Secretary may award to the prevailing employer a reasonable attorneys’ fee, not exceeding $1,000, to be paid by the complainant.
If the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States with jurisdiction, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury. The proceedings shall be governed by the same legal burdens of proof specified in paragraph (2)(C).
The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including—
reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination;
the amount of back pay, with interest; and
compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney’s fees.
Unless the complainant brings an action under paragraph (4), any person adversely affected or aggrieved by a final order issued under paragraph (3) may obtain review of the order in the United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. Review shall conform to chapter 7 of title 5. The commencement of proceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the order.
An order of the Secretary with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.
Whenever any person has failed to comply with an order issued under paragraph (3), the Secretary may file a civil action in the United States district court for the district in which the violation was found to occur, or in the United States district court for the District of Columbia, to enforce such order. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages.
A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order.
The court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorneys’ and expert witness fees) to any party whenever the court determines such award is appropriate.
Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.
Nothing in this section shall be construed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.
Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of title 28.
Subsection (a) shall not apply with respect to an employee of an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food who, acting without direction from such entity (or such entity’s agent), deliberately causes a violation of any requirement relating to any violation or alleged violation of any order, rule, regulation, standard, or ban under this chapter.
Source credit: (June 25, 1938, ch. 675, § 1013, formerly § 1012, as added Pub. L. 111–353, title IV, § 402, Jan. 4, 2011, 124 Stat. 3968; renumbered § 1013, Pub. L. 114–255, div. A, title III, § 3073(b)(1), Dec. 13, 2016, 130 Stat. 1137.)
- 1938Enacted · Pub. L. 111-353 · 124 Stat. 3968
- 2016Amended · Pub. L. 114-255 · 130 Stat. 1137
A history note hasn’t been published yet. The record shows enactment by Pub. L. 111-353 on 1938-06-25.
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