New guidance released earlier this month by the Occupational Safety and Health Administration (OSHA) clarifies that whistle-blower settlements OSHA approves must be “fair, adequate, reasonable, and in the public interest,” with knowing and voluntary consent from the employee.
To that end, the agency says that should it encounter language that limits or otherwise restricts a complainant from participating in protected activity, it will “ensure that such clauses are removed or clarified so that the agreements are lawful and consistent with the underling purposes of the whistle-blower protection statutes.”
The guidance augments Chapter 6 of the OSHA Whistleblower Investigations Manual by adding more settlement provisions OSHA will not accept. These include:
- Provisions that restrict 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;
- Provisions that require a complainant to notify his or her employer before filing a complaint;
- Provisions that require a complainant to affirm he or she has not previously provided information to the government or engaged in other protected activity; and
- Provisions that require a complainant to waive his or her right to receive a cash reward.
The guidance is dated August 23, but was released in mid-September.
OSHA says it issued the guidance in response to a March 2015 petition for rulemaking from the Government Accountability Project.