Settling a Whistleblower Case

OSHA encourages both parties to voluntarily resolve whistleblower cases and reach an agreement that meets their needs. Additional resources to assist the parties in reaching a settlement may be available through OSHA’s Alternative Dispute Resolution program

Worker holding hard hat

Review and Approval of Settlement Agreements: OSHA is a party to or reviews and approves settlement agreements in whistleblower cases under the laws it enforces. OSHA will not enter into or approve a settlement agreement unless it determines that the parties are making the settlement knowingly and voluntarily, the settlement provides appropriate relief to the complainant, and the settlement does not undermine the whistleblower protection law.

OSHA Standard Settlement Agreement: Whenever possible, the parties should use the OSHA standard settlement agreement. However, the parties may negotiate their own settlement agreement and submit it for OSHA’s approval. 

OSHA Will NOT Approve An Agreement 
That Contains Any of the Following:

  1. A provision that states or implies that OSHA or DOL is party to a confidentiality agreement.
  2. A "gag" provision that prohibits, restricts, or discourages an employee from participating in protected activity. Although a complainant may waive the right to recover future or additional compensation for retaliation that occurred prior to the date of the settlement agreement, a complainant cannot waive the right to provide information to a government agency, participate in investigations, testify in proceedings, or file a complaint about a condition or violation of law, regardless of when that condition or violation of law occurred. 
  3. A provision that waives a complainant’s right to receive or fully retain a monetary award from a government-administered whistleblower award program for providing information to a government agency.
  4. A waiver of future employment that OSHA determines is overly restrictive based on the criteria described in the Whistleblower Investigations Manual.
  5. A release clause in which complainant could not reasonably know who is being released. Release clauses with vague releasees such as: "Agents, Insurers, Stockholders, Attorneys, Affiliates," etc. Such unclear terms must not be in a release, or the release must be accompanied by an appendix listing all the "Agents, Insurers, Stockholders, Attorneys, Affiliates," etc.

OSHA may also refuse to approve additional terms that it finds are inconsistent with the protections of its whistleblower laws. 

OSHA must retain an unredacted copy of the settlement agreement, which may be subject to disclosure under the Freedom of Information Act (“FOIA”), unless an exception applies. However, the employer and the employee may agree that each of them will keep the settlement agreement confidential. For more information about OSHA’s policies regarding FOIA requests for settlement agreements see the Whistleblower Investigations Manual.

The private parties, not OSHA, are responsible for ensuring that tax withholding and reporting of amounts received in a whistleblower settlement are done in accordance with applicable law. 

If the parties do not settle the whistleblower case, OSHA proceeds with its investigation and issues findings or refers the case for litigation depending on which whistleblower law applies to the case and OSHA’s determination of whether unlawful retaliation occurred. 

Depending upon the statute under which the whistleblower complaint was filed and whether the case proceeded to a court hearing, OSHA staff will either reopen the whistleblower case or pursue court-ordered enforcement through the Regional Solicitor.

Some OSHA regional offices offer Alternative Dispute Resolution (ADR) as a way to resolve whistleblower complaints outside of the investigative process. Using ADR, parties voluntarily attempt to negotiate a settlement with the assistance of an OSHA representative.