The Occupational Safety and Health Administration (“OSHA”) recently issued new guidelines for the approval of settlement agreements between employers and employees during whistleblower cases. These guidelines will replace Chapter 6, paragraphs XII.E.2 and 3, of the OSHA Whistleblower Investigation Manual, the current version of which was published on January 28, 2016. The new guidelines will go into effect immediately.
The new guidelines confirm that OSHA will not approve settlement agreements that prohibit or restrict employees from “participating in protected activity.” In this regard, OSHA is particularly focused on the inclusion of confidentiality or “gag” provisions, non-disparagement clauses, and liquidated damages provisions in proposed settlement agreements. OSHA states that it specifically disapproves of the following:Provisions that restrict an employee’s ability to provide information to the government or testify in related proceedings about the employer’s past or future conduct; Provisions that require an employee to notify the employer… Continue Reading