The Occupational Safety and Health Administration (OSHA) released new guidance September 9 on settling whistleblower claims under the 22 statutes the agency administers that provide more protections to employees and make it more difficult for employers to end litigation.
OSHA’s new guidance is meant to address “gag” provisions in settlement agreements that the agency believes discouraged whistleblowing or participation in OSHA investigations. Troublesome language, according to OSHA, might include a provision that explicitly prohibits the employee from participating in a government investigation or requires the employee to notify the employer before participating in an investigation. The fact that the agency frowns on that type of language is not surprising.
Even if some examples of troubling language were expected, there are some new interpretations in the recent guidance that could require real changes in the way employers draft settlement agreements. OSHA will not approve any settlement agreements that require an employee to disclaim any knowledge that the employer violated the law, nor will the agency accept a provision through which an employee might waive his or her right to a monetary reward under a whistleblowing statute.
Further, and importantly for most employers, OSHA indicated that its new guidance could affect confidentiality and non-disparagement clauses, classic parts of any settlement agreement. The agency said, “complainants may interpret [such language] as restricting their ability to engage in protected activity.” Thus, broadly worded clauses that do not allow for the employee to communicate with government agencies regarding the settlement will cause OSHA to reject the agreement.
In those cases where OSHA refuses to sign off on the agreement as-is, the agency indicated that it will ask the parties “to remove the offending provisions and/or add” OSHA-provided language “prominently positioned within the settlement.”
Based on the new guidelines, employers would probably do best to include that specific language (found at the end of the guidance document) in all settlement agreements to avoid any issue with OSHA’s whistleblower laws.