No Re-employment Clauses in Settlement Agreements

On July 23rd, OSHA Administrator Edwin G. Foulke, Jr. issued a memo regarding OSHA's Policy for approving settlement agreements containing future employment waiver causes in whistleblower cases. Basically, OSHA will decide on a case by case basis whether to approve settlements containing an agreement on the part of the complaining employee that he or she will not be re-employed (or I assume apply for re-employment), under any of the 14 federal whistleblower statutes it administers.

The factors that will be considered are:

1. the breadth of the waiver;
2. the amount of the remuneration;
3. strength of the retaliation case;
4. representation by counsel; and
5. other relevant factors.

Although there is nothing wrong with such review, as a practical matter such clauses are standard in the settlement of any employment dispute. It mirrors the reality, that very few are served by forcing parties whose last dispute ended up in the court house, to have a second try.

Let's hope it is the rare day that OSHA turns down such agreements.

Hat tip to the folks at the DLR for calling this to my attention.