In August 2016, the U.S. Department of Labor Occupational OccupationalSafety and Health Administration (OSHA) issued guidance on settlement agreements in whistleblowing cases aimed at prohibiting gag provisions that prohibit, limit, or discourage participation in protected activities, for example. B confidentiality or non-ineligibility clauses; broad clauses on lump sum damages; a requirement that a worker notify the employer before filing a government action; 12 This rule is potentially broad enough to apply to almost all confidentiality and confidentiality agreements that employers require of current workers. It also applies to separation, severance or composition agreements, which generally contain confidentiality rules. The SEC has made it clear and publicly that the Commission intends to strictly enforce this provision, even though there is no direct evidence that an agreement has hindered a potential whistleblower. As noted above, the SEC`s Risk Alert, issued on October 24, 2016, highlights the Agency`s continued intention to monitor these issues vigorously. And the activities of the EEOC and other agencies reinforce the need to carefully check internal directives, procedures and agreements in order to find the necessary changes. Sean McKessy, who heads the SEC`s whistleblower office, warned companies of the potential for sanctions through banned employment contracts. Similarly, the lawyers who design them may be subject to a practice before the Commission. In an early case, the court decided that the reporter had not violated the confidentiality agreement by reporting fraud to the government because of the strong political interests behind the False Claims Act.
See United States Against Cancer Treatment Ctrs. By Am., 350 F.Supp.2d 765, 773 (N.D. ill. 2004). Given the SEC`s recent focus on whistleblowing programs and its desire to continue to protect the rights of whistleblowers, companies should review all forms of employee agreements that contain restrictions on (i) the use or disclosure of confidential information or (ii) the recovery of financial incentives related to the actions of managing authorities. A NeuStar, Inc. (Dec. 19, 2016), the company`s severance pay agreements contained a non-negative clause using the following language: NeuStar and HomeStreet`s injunctions serve to emphasize that even if a company has voluntarily revised its agreements to comply with Rule 21F-17(a), the SEC may still impose fines and potentially distressing and unwanted obligations to contact former employees who enforce problematic separation agreements. to inform them that, regardless of the money they have received in connection with their separation agreements, they are free to report to the SEC any fault of the company, actual or perceived. . .
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