Renee Phillips, Co-Head of Orrick's Whistleblower Task Force and a partner in Orrick's Employment Law & Litigation practice in New York, recently spoke with Compliance Week regarding new policy guidelines published by the Department of Labor's Occupational Safety and Health Administration (OSHA) that could make it harder for companies to get approval of settlements in whistleblower cases.
OSHA enforces 22 different federal whistleblower statutes. As part of that oversight, it regularly reviews settlement agreements between employees and employers reached during the investigative stage to ensure that they are "fair, adequate, reasonable, and in the public interest."
Last month, OSHA issued new policy guidelines stating that it will not approve what it considers to be "gag" provisions in settlement agreements; that is, provisions that may prevent employees from filing a complaint with a government agency, participating in an investigation, or otherwise providing information to the government.
Renee explained that OSHA is not the only government agency taking action in this area. "OSHA's memo is indicative of a trend toward government agencies seeking to protect employees from any language that could be viewed by an average person as impeding their ability to make a report of alleged wrongdoing to a government agency," she noted, adding, "This is OSHA's way of complementing those efforts."
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