OSHA issues new guidance on settlement approval in whistleblower cases

The Occupational Safety and Health Administration has published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that settlements do not contain terms that could be interpreted to restrict future whistleblowing. The guidelines, issued Sept. 9, make clear that OSHA will not approve a whistleblower settlement agreement that contains provisions that may discourage whistleblowing without outright prohibiting it, such as:
  • Provisions that require employees to waive the right to receive a monetary award from a government-administered whistleblower award for providing information to a government agency about violations of the law.
  • Provisions that require the employee to advise the employer before voluntarily communicating with the government or to affirm that the employee is not a whistleblower.
OSHA also reserves the right not to approve settlements with liquidated damages provisions that it believes are excessive. The new guidance responds to a March 2015 petition for rulemaking from the Government Accountability Project.
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