Best Ohio Whistleblower Attorney Answer: If I see food safety issues at the restaurant that I work at, what should I do? Does my food safety complaint have to be in writing? Is my employer allowed to retaliate against me for reporting food safety issues?
At The Spitz Law Firm, LLC, our employment lawyers understand that working in a restaurant exposes employees to employment dangers that aren’t as prevalent in other workplaces. As our employment lawyers have talked about previously in this blog, issues such as minimum wage/tip violations (My Employer Will Not Let Me Keep My Tips), restaurant owners that wrongly think they don’t have to pay overtime (Can I Sue My Restaurant Employer For Not Paying Me Overtime?), to the looser atmosphere in restaurants that breeds discrimination and sexual harassment issues (Can I Be Fired For Reporting Sex Harassment In My First Month At A Restaurant?) come up time and time again.
One issue that an employee of a restaurant also has to deal with is food safety. As you most likely have noticed, food safety has been in the news a lot lately with the issues that have befallen the massively growing “fast-casual” chain of Chipotle. Starting in November 2015, an outbreak of the deadly food borne bacteria E. coli started in the Pacific Northwest and caused Chipotle patrons to get sick all the way across the country, including some E. coli cases in Northeast Ohio. Chipotle then experienced a norovirus outbreak in California and Boston that caused over 370 people to become sick, including half of the Boston College basketball team.
While Chipotle is now being investigated by the federal government for the food safety issues that have been popping up in all regions of the country, certainly a question that will come up is if any Chipotle employees reported food safety issues that, if addressed, could have prevented the E. coli and norovirus outbreaks. Further, were any of those employees retaliated against for reporting issues with Chipotle’s food safety measures?
As our employment lawyers have covered previously, employees who report illegal activity at work may risk retaliation by their employers, including wrongful termination. In fact, we have covered the subject extensively on our employment blog. (See What Protections Do I Have As A Whistleblower?; Can I Be Fired For Reporting Financial Fraud At My Company?; Can I Be Fired For Reporting A Customer’s Illegal Acts?) Normally, the offense complained about needs to be a felony or endanger the public health in order to qualify an employee to file a claim under Ohio’s whistleblower statute, Ohio Revised Code §4113.52. However, Ohio’s whistleblower statute is strict in certain respects that the complaint has to be in writing.
In order to promote employees calling out food safety issues, the federal government has stepped in and offered increased protection specifically for employees who complain about food safety violations. On February 13, 2014, Section 402 of the FDA Food Safety Modernization Act (“FSMA”) went into effect, which protects workers who disclose food safety concerns. The FSMA offers a couple of advantages versus filing under the Ohio whistleblower statutes. First, while the FSMA and Ohio law have similar timeframes to filing lawsuits after the termination occurs (180 days), the FSMA does not require the underlying complaint of food safety violations to be in writing. The food safety complaints must be made either verbally or in writing to the U.S. Occupational Safety and Health Administration, most commonly known as “OSHA.” Procedures for contacting OSHA verbally or in writing can be found at https://www.osha.gov/workers/file_complaint.html.
Another advantage the FSMA offers is a significantly easier prima facie case to establish retaliation. Under the FSMA, complaining employees are protected from retaliation as long as they have a reasonable belief — defined in the regulation as a subjective, good-faith belief and an objectively reasonable belief — that the complained-of conduct violates the Federal Food, Drug, and Cosmetic Act. However, the employee is not required to show that the food safety issue was an actual violation of law.
In order to show the belief is subjectively reasonable, an employee will only need to show that he or she “actually believed” the conduct complained of constituted a violation of relevant law. In order to show an “objectively reasonable” belief, an employee must show that a reasonable person would have held the same belief, having the same information, knowledge, training and experience as the complainant.
Despite the lower standard and relaxed reporting requirements under the FSMA, it is abundantly important that you contact an experienced and knowledgeable employment attorney if you are working at a restaurant or other job that involves the production or transport of food. Not contacting an attorney may lead to not reporting the violation correctly, which means you may not be protected under the law if your employer retaliates against you.
Ohio law provides job protections to those employees that report or oppose illegal or unsafe conduct or work conditions, such as OSHA violations, embezzlement, unlawful discrimination, or patient abuse, to name a few. However, in order to have the protections under the law, there are a lot of steps that each employee must take. That is why it is absolutely critical for any employee confronted with illegal or unsafe conduct or work conditions at work to immediately consult with employment law lawyers in order to make sure that everything is done right. If you wait until you are fired, you may have already lost your claim. Do not wait. If you have seen any illegal or dangerous conduct on your job, then the best thing you can do is call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm, and its attorneys are experienced and dedicated to protecting Ohio employees from retaliation after blowing the whistle on unlawful and hazardous activities at work.
The materials available at the top of this whistle blower claims page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “what should I do if I am being harassed for reporting…”, “how do I …?”, “Am I …?”, “what should I do if…” or “can my boss fired me for …”, it would be best for you to contact an Ohio attorney to obtain advice with respect to particular whistleblower claims questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.