OSHA to review work bans
WASHINGTON The Bush administration will continue to approve legal settlements that cost whistle-blowers their jobs, but will add a new layer of review to ensure that such agreements are fair and reasonable, according to guidelines released Tuesday by the U.S. Labor Department.
The new directive came after USA TODAY reported in March that 43 of 73 settlements involving environmental and nuclear safety whistle-blowers and approved by the Labor Department since 2000 included language that permanently banned the person from working for the employer.
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The whistle-blowers accepted financial settlements after alleging they were wrongly fired or disciplined. In some cases, their complaints were validated by federal and state authorities.
The Occupational Health and Safety Administration (OSHA), the Labor Department arm that issued the guidelines, is charged with reviewing certain whistle-blower settlements to certify that they are in the public interest.
Rep. John Dingell, D-Mich., who chairs the House Energy and Commerce Committee, said in March that his staff would investigate whether the employment bans amount to illegal “blacklisting” of whistle-blowers.
The Government Accountability Project (GAP), which represented many of the whistle-blowers in their cases, has urged the Labor Department to prohibit employment bans. The department has decided not to do that, OSHA Administrator Edwin Foulke said in a letter to Dingell on Tuesday. Instead, Foulke ordered OSHA officials to “specifically review the terms.” For example, OSHA should consider whether an employee is fairly compensated in such cases.
“We have concluded that future employment waiver clauses are not per se against public policy,” Foulke wrote. “We do not believe (they) are a form of blacklisting.”
Tom Carpenter, a GAP lawyer, said many of his clients have felt forced to accept employment bans. “I don’t think the Department of Labor understands what it’s supposed to do here,” he said. “It is supposed to protect the public interest and assure that workers are free to raise concerns.”
Assistant Labor Secretary David James said that “GAP is complaining about the very practice that they have advised their clients to take for over 23 years, benefiting them in the hundreds of thousands of dollars.”
Carpenter called that ” an unfair charge,” saying his group usually advises clients not to accept employment bans. “These people are economically coerced,” he said. “These cases can drag out for years and years, and the employee is left without income.”