As you know, the Occupational Safety and Health Act of 1970 was enacted for the purpose of ensuring the safety and health of employees by setting and enforcing certain standards in the workplace. In furtherance of that mission, OSHA has the power to review settlement agreements between employers and employees under its authority to protect the administration of whistleblower statutes.
In August 2016, the Director of Whistleblower Protection Programs, Maryann Garrahan, issued a memorandum providing Interim Guidance to employers to aide in compliance with these standards. This guidance supersedes the guidance in Chapter 6, paragraphs XII.E.2 and 3 of the OSHA Whistleblower Investigations Manual, but does not otherwise change OSHA’s policies with regard to review of settlements. The Interim Guidance states that it is designed to “ensure that an employer does not contractually restrict or otherwise deter an employee from engaging in whistleblower activity and collaterally to help ensure that employees who do engage in such activity do so without fear or concern of retaliation.”
According to Garrahan, “OSHA will not approve a “gag” provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity.” Often, constraints of this kind arise from broad confidentiality or non-disparagement clauses, which OSHA interprets as restricting an employee’s ability to engage in protected activity. OSHA has provided other examples of prohibited provisions in its Interim Guidance, including prohibiting:
- A provision that restricts the complainant’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on a respondent’s past or future conduct.
- A provision that requires a complainant to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.
- A provision that requires a complainant 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 employer has violated the law.
- A provision that requires a complainant 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.
So what does this mean? Employers should immediately review their severance, settlement, and confidentiality agreement templates to ensure compliance with OSHA’s new guideline, and attorneys need to be aware of the same in drafting any such agreements.
For more information on this topic, you can visit http://bit/ly/whistleblower-guidelines. There, you will find additional information, including guidance regarding avoiding language such as “except as provided by law” in your agreements, and what language should be used instead. If you have any questions, please feel free to call our office to discuss.