Anything that could be interpreted to discourage future whistleblowing will be a deal breaker in a settlement of whistleblower cases between employers and employees, the Occupational Safety and Health Administration announced.
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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