The policy guidance states that “OSHA will not approve a ‘gag’ provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity,” and defines “protected activity” to include “filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government.”
The new policy guidance clarifies that unlawful “gag clauses” encompass not only express prohibitions on providing information to government agencies but also indirect restrictions on protected conduct that could dissuade whistleblowing, including broad confidentiality or non-disparagement clauses.
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.
OSHA’s policy guidance is consistent with the SEC’s recent enforcement actions against companies for using overly broad confidentiality provisions in severance agreements that would likely deter employees from blowing the whistle. For example, the SEC recently issued a cease-and-desist order against BlueLinx Holdings Inc. for requiring employees entering into severance agreements to waive the right to recover a whistleblower award and to notify the company’s legal counsel before disclosing information to government agencies pursuant to legal process.