Update: In response to a petition for rulemaking filed by the Government Accountability Project and Zuckerman Law, OSHA’s Directorate of Whistleblower Protection Programs has issued policy guidelines on provisions in settlement agreements that restrict whistleblowing.
The Government Accountability Project and Zuckerman Law call on DOL to end De facto Gag Clauses
(WASHINGTON) – The Government Accountability Project and Zuckerman Law have submitted a rulemaking petition to the Department of Labor (DOL) asking it to strengthen prohibitions against companies using gag clauses in policies and agreements that undermine federal whistleblower protection laws.
DOL already bars express “gag clauses” in settlement agreements, but many companies are imposing on whistleblowers de facto gag clauses that have the same effect as express gag clauses. Examples include:1) provisions barring the employee from confidentially disclosing information to investigating agencies, and requirements to obstruct government law enforcement investigations; 2) waiver of entitlement to statutory whistleblower incentives; 3) contracts containing confidentiality or non-disparagement provisions; and 4) compelled statements of corporate innocence, coupled with demands to reveal evidence that also could constitute obstruction of justice.
Although whistleblowers theoretically can object to these provisions, many are compelled to accept them because they need a severance or settlement payment to make ends meet while they search for another job. A DOL rule barring attempts to implement or enforce offending provisions would enable employees to release claims without appearing to waive their right to communicate with federal or state enforcement agencies concerning alleged violations of law.
“De facto gag clauses silence whistleblowers and may prevent them from disclosing to regulatory and enforcement agencies information about threats to public health and safety, financial fraud, consumer safety, food safety, nuclear safety, transportation safety, and other vital public concerns. We hope that DOL will step up and combat these pernicious threats to the whistleblowers laws that it enforces,” said Jason Zuckerman, Principal of Zuckerman Law.
The petition requests that DOL issue a rule prohibiting employers from including de facto gag clauses in settlement agreements, and clarifying that an attempt to implement or enforce direct or indirect restraints that would have a chilling effect on protected activity or access to DOL-enforced remedies is per se illegal discrimination under relevant whistleblower statutes. This Petition also requests that DOL evaluate the prevalence of de facto gag clauses in settlement agreements that DOL approves in whistleblower cases. Finally, this petition requests that DOL formulate guidance prohibiting such clauses.
“The forms of creative gags are limited only by the imagination. But they all shield abuses of power that can only be sustained by secrecy. They block the shareholders, law enforcement and the public’s right to know. Most ugly, they often are shameless legal bluffs that few unemployed whistleblowers can afford to call. Our petition makes gags illegal and accountable from the first threat. The free flow of information is a necessity for all but the corrupt.”
Last August, Labaton Sucharow and GAP filed a similar petition with the SEC addressing unscrupulous legal maneuvers employed by many companies trying to silence potential whistleblowers. A summary of the petition is available here.
About GAP and Zuckerman Law
The Government Accountability Project is the nation’s leading whistleblower protection and advocacy organization. A nonprofit, non-partisan 501(c)(3) organization that litigates whistleblower cases, GAP helps expose wrongdoing to the public and actively promotes government and corporate accountability. Since its founding in 1977, GAP has represented over 6,000 whistleblowers in the court of law and in the court of public opinion, including hundreds of whistleblowers who have reported financial misconduct. GAP is also a leader in campaigns to enact or defend all federal whistleblower protection statutes, including those in the Sarbanes-Oxley and Dodd-Frank laws.
Zuckerman Law represents whistleblowers in retaliation and reward matters. Firm Principal Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel (the federal agency charged with protecting whistleblowers in the federal government) and served on the Department of Labor’s Whistleblower Protection Advisory Committee. He has substantial experience litigating whistleblower retaliation cases and has trained administrative law judges, agency EEO directors, senior OIG officials and delegations from more than thirty countries on federal whistleblower protections. Mr. Zuckerman authors the Whistleblower Protection Law Blog and serves as Co-Chair of the Whistleblower Subcommittee of the ABA Labor and Employment Section’s Employee Rights and Responsibilities Committee.
Andrew Harman – GAP Communications Director
(202) 457-0034 Ext. 156