On September 15, 2016, the Occupational Safety and Health Administration issued new guidance on proposed whistleblower settlements. The new guidance, which can be found here and here, makes clear that language that contravenes public policy and statutory protections cannot be included in any whistleblower settlement agreement between a complainant and an employer.
Among other things, OSHA will not approve language that prohibits an employee from engaging in protected activity. This language can take many forms, but is commonly found in provisions that (a) restrict an employee from providing information to the government, participating in a governmental investigation, or testifying in proceedings, (b) require an employee to notify his or her employer before filing a complaint, (c) require an employee to affirm that he or she has not previously provided information to the government, and (d) require an employee to waive his or her right to an award, or to pay some portion of an award to the employer.
Also of note are liquidated damages and blanket exculpatory provisions. OSHA will scrutinize liquidated damages clauses to ensure that they are not disproportionate to potential loss and/or the employee’s ability to pay. Finally, employers will have to revise agreements that contain broad restrictions qualified by the ubiquitous “except as provided by law” clause (this language is actually quoted in the guidance). OSHA has provided boilerplate language that can be used in its stead.