Recognizing it’s hard to blow the whistle once you’ve been gagged, OSHA has issued new guidelines prohibiting the use of gag and confidentiality clauses in settlement agreements. See Policy Guidelines for Approving Settlement Agreements in Whistleblower Cases.

OSHA reviews settlement agreements between whistleblowers and their employers “to ensure they are fair, adequate, reasonable, and in the pubic interest, and that the employee’s consent was knowing and voluntary.” OSHA now updates “the criteria that OSHA will use to evaluate whether a settlement impermissibly restricts or discourages protected activity.”

OSHA confirms it will not approve any gag or confidentiality provision that “prohibits, restricts, or otherwise discourages an employee from participating in protected activity.” Such protected activity includes but is not limited to providing information to the government, filing a complaint with a governmental agency, participating in an investigation, or testifying in proceedings regarding an employee’s past or future conduct.

Any provision that restricts such activity is prohibited, as is any provision that requires an employee to notify his employer before filing a complaint or communicating with the government regarding the employee’s past or future conduct. And even adding the phrase “except as provided by law” to a confidentiality clause will not spare it from deletion by OSHA.

The take away? Railroad attorneys should not even think about gagging employees with confidentiality clauses, because OSHA will rip off the gag every time. Here is the full OSHA Policy Guidelines for Approving Whistleblower Settlements. For more information on the whistleblower rights of railroad workers, go to the free Rail Whistleblower Library.