The U.S. Occupational Safety and Health Administration ("OSHA") has released a final rule governing the employee protection provision of Section 402 of the FDA Food Safety Modernization Act ("FSMA"), which protects employees against retaliation by an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food for engaging in certain protected activities. Protection is needed when an employee has provided or is about to provide to his or her employer, the federal government, or the attorney general of a state information relating to any violation of the Federal Food, Drug and Cosmetic Act ("FDCA"); has testified or is about to testify in a proceeding concerning such violation; has assisted or participated, or is about to assist or participate, in such a proceeding; or has objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of the FDCA. Among other things, the rule establishes procedures and time frames for the handling of retaliation complaints under FSMA and to OSHA, which must be filed within 180 days of the alleged violation, the procedures for the investigation of the complaint by OSHA, appeals of OSHA's determinations to an administrative law judge ("ALJ") for a hearing de novo, hearings by ALJs, review of ALJ decisions by the Administrative Review Board, and judicial review of the Secretary's final decision. The rule further states that the complainant need not show that the conduct complained of constituted an actual violation of law.

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