OSHA to Employers: No Gagging Whistleblowers!
On September 9, 2016, the United States Occupational Safety and Health Administration (“OSHA”) published new guidelines
for approving settlements between employers and employees in
whistleblower cases to ensure that those agreements do not contain terms
that could be interpreted to restrict future whistleblowing. OSHA
reviews settlements between employees and employers to ensure that they
are fair, adequate, reasonable, and in the public interest, and that the
employee’s consent was knowing and voluntary. The guidance provides
that OSHA will not approve settlement agreements that contain provisions
that discourage (or have the effect of discouraging) whistleblowing,
such as:
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“Gag” provisions that prohibit, restrict, or otherwise discourage an employee from participating in protected activity, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. These constraints often arise from broad confidentiality or non-disparagement clauses, which complainants may interpret as restricting their ability to engage in protected activity. The prohibited constraints may also be found in provisions that:
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restrict the employee’s right to provide information to the government, file a complaint, or testify in proceedings based on a respondent’s past or future conduct;
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require an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct;
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require an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employee has violated the law; and/or
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require an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.
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Provisions providing for liquidated damages in the event of a breach where those provisions are clearly disproportionate to the anticipated loss to the respondent of a breach, the potential liquidated damages would exceed the relief provided to the employee, or whether, owing to the employee’s position and/or wages, he or she would be unable to pay the proposed amount in the event of a breach.
When OSHA encounters these types of
provisions, it will ask the parties to remove those provisions and/or
prominently place the following statement in the settlement agreement:
“Nothing in this Agreement is intended to or shall prevent, impede or
interfere with the complainant’s non-waivable right, without prior
notice to Respondent, to provide information to the government,
participate in investigations, file a complaint, testify in any future
proceedings regarding Respondent’s past or future conduct, or engage in
any future activities protected under the whistleblower statutes
administered by OSHA, or to receive and fully retain a monetary award
from a government-administered whistleblower award program for providing
information directly to a government agency.”