InsideOSHAOnline Reports on Whistleblower Firm’s Efforts to Combat Gag Clauses

An article in InsideOSHAOnline.com titled Whistleblower Attorney Backs New OSHA Guidance On Settlement Reviews reports on the successful efforts of Tom Devine, Legal Director of the Government Accountability Project (GAP), and whistleblower lawyer Jason Zuckerman to persuade OSHA to adopt guidance for agency reviews of settlement agreements between whistleblowers and employers.

In conjunction with GAP, Zuckerman drafted a petition for rulemaking to the Department of Labor to combat corporate muzzling of whistleblowers. That petition resulted in OSHA issuing new guidance on settlement approval in whistleblower cases. Click here to read the petition.

“De facto gag clauses undermine the operation and frustrate the intent of the whistleblower protection laws that [the Department of Labor] enforces by chilling or discouraging employees from disclosing to regulatory and enforcement agencies information about threats to public health and safety,” and other concerns, Zuckerman says.

OSHA’s policy guidance on settlement agreements identifies four types of settlement provisions that can constrain whistleblowing and therefore warrant heightened scrutiny:

1. “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. For example, OSHA will not approve a provision that restricts a complainant’s right to provide information to the government related to an occupational injury or exposure.
2. 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.
3. 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. Such requirements may compromise statutory and regulatory mechanisms for allowing individuals to provide information confidentially to the government, and thereby discourage complainants from engaging in protected activity.
4. A provision that requires a complainant to waive his or her right to receive a monetary award (sometimes referred to in settlement agreements as a “reward”) from a government-administered whistleblower award program for providing information to a government agency. For example, OSHA will not approve a provision that requires a complainant to waive his or her right to receive a monetary award from the Securities and Exchange Commission, under Section 21F of the Securities Exchange Act, for providing information to the government related to a potential violation of securities laws.[ ]Such an award waiver may discourage a complainant from engaging in protected activity under the Sarbanes­Oxley Act, such as providing information to the Commission about a possible securities law violation. For the same reason, OSHA will also not approve a provision that requires a complainant to remit any portion of such an award to respondent. For example, OSHA will not approve a provision that requires a complainant to transfer award funds to respondent to offset payments made to the complainant under the settlement agreement.”

In addition, the policy guidance announces that OSHA reserves the right not to approve a settlement where the liquidated damages are clearly disproportionate to the anticipated loss to the respondent in the event of a breach.