OSHA has issued new guidance on approving settlement agreements in whistleblower cases, revising portions of its Whistleblower Investigations Manual. The guidance, dated August 23 but not released until September 15, states that settlements approved by OSHA cannot contain provisions discouraging employees from making future disclosures or contacting the government. It also sets forth other settlement provisions that OSHA will refuse to accept, including: (i) waiving the right to a monetary reward; (ii) requiring the employee to return a portion of a cash reward to the employer; (iii) mandating a worker notify the employer before contacting the government; and (iv) requiring the worker affirm to the employer that there were no other contacts with the government. The guidance further provides disclaimer language to be used to ensure that employees entering into settlement agreements understand their rights.
OSHA’s guidance largely mirrors efforts by the Securities Exchange Commission to curb employers from precluding employees from communicating with the government regarding violations of securities laws. In light of these efforts, employers should carefully review their template settlement agreements and policies to ensure compliance with governmental regulations.