Sample Standard OSHA Settlement Agreement

In the matter of: Respondent / Complainant / Case Number

SETTLEMENT AGREEMENT

The undersigned Name [Respondent], the undersigned Name [Complainant], and the Occupational Safety and Health Administration ("OSHA"), in the settlement of the above-captioned matter, agree as follows

[Note: If this is a "bilateral agreement" that meets the criteria in the Settlement Chapter of the WIM, the following language should be used instead: The undersigned Respondent [Name] and the Occupational Safety and Health Administration ("OSHA"), in the settlement of the above-captioned matter, agree as follows:]

Compliance with Acts. Respondent will not discharge or in any other manner discriminate against Complainant or any other employee because of activity protected by the whistleblower provision of the Statute and Citation.

Non-Waiver of Rights. Nothing in this Agreement [or in any separate agreement] is intended to or shall prevent, impede, or interfere with Complainant's non-waivable right, without prior notice to Respondent, to provide information to a government agency, participate in investigations, file a complaint, testify in proceedings regarding Respondent's past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program (such as, but not limited to, the SEC or IRS whistleblower award programs) for providing information directly to a government agency, or to exercise any other rights protected by federal law, including the exercise of employee rights under Section 7 of the National Labor Relations Act. [It may be appropriate to add:] Further, nothing in this Agreement (or in any separate agreement) is intended to or shall prevent, impede or interfere with complainant's filing a future claim related to an exposure, an occupational injury, or an occupational illness, whose existence was unknown, or reasonably could not have been known, to Complainant on the date Complainant signed this Agreement.

[OPTIONAL] Posting of Notice.. Respondent will post in conspicuous places in and about its premises, including all places where notices to employees are customarily posted, copies of the Notice attached to this settlement agreement. This Notice, which shall be signed by a responsible official of Respondent's organization and display the date of actual posting, shall continue to be posted for at least 60 consecutive days from the date of initial posting. [For employers who communicate with their employees electronically, insert the following: Respondent shall also e-mail this notice to all employees at [insert establishment] or post this notice on its intranet. Intranet postings must also be maintained for at least 60 days.]

[OPTIONAL] Compliance with Notice. Respondent will comply with all of the terms and provisions of the Notice described above.

[OPTIONAL] Posting of an Informational Poster. Respondent will permanently post in a conspicuous place, in or about its premises, including all places where posters for employees are customarily posted, [select appropriate poster and determine whether it's appropriate to include versions in multiple languages: OSHA 3165-12-06R ("Job Safety and Health: It's the Law!"); Retaliation for Speaking Up Is Not Okay Poster; 29 CFR Part 24, Appendix A ("Your Rights Under the Energy Reorganization Act"); OR the applicable OSHA Whistleblower Rights Fact Sheet(s)]. [For employers who communicate with their employees electronically, insert the following: Respondent shall also e-mail a copy of this poster or applicable fact sheet or FAA Whistleblower Protection Program poster to all employees at [insert establishment] or post it on its intranet.]

[OPTIONAL] Training. Respondent will provide employees and management with training on employees' rights to report actual or potential violations without fear of retaliation under the Statute and Citation and the employer's responsibility to refrain from retaliating against employees who raise such concerns. The training will take place within 60 days from the date the parties sign the Agreement. Within 15 days of the training's completion, Respondent will provide OSHA with copies of the training materials as well as the signatures of all employees and management who attended. This information will be sent to: [insert name of OSHA person and physical or email address].

Reinstatement. [Note: This section may be omitted if reinstatement is not a possible remedy in the case (for instance if the case does not involve a termination, demotion, or adverse transfer). If reinstatement is a possible remedy in the case, choose one of the two bulleted options; delete the other bullet, and start the paragraph after the bolded word "Reinstatement"]:

• Respondent has offered reinstatement to the same or equivalent job, including restoration of seniority and benefits, that Complainant would have had but for the alleged retaliation. Complainant has [declined/accepted] reinstatement. [If accepted: Complainant's job title will be [insert title] and Complainant will start on [insert date].
• Respondent is not offering, and/or Complainant is not seeking, reinstatement.

Monies. [This section may be omitted if monetary relief is not a part of the settlement.] [Note: Monies should include a single payment of all monetary relief due to Complainant whenever possible. Choose one of three bulleted options, delete the other two bullets, and start the paragraph after the bolded word "Monies"]:

• Respondent will pay the Complainant $ _____in back pay, less normal payroll deductions. The final net amount being provided to Complainant is $_______. Respondent will provide a W-2 statement to Complainant. Respondent shall submit appropriate documentation to the Social Security Administration allocating back pay to the appropriate periods [OR, such as in FRSA cases, if applicable, to the Railroad Retirement Board allocating back pay to the appropriate periods].
• Respondent will pay Complainant a lump sum of $ ___ and issue an IRS Form 1099. Complainant and Respondent agree to comply with applicable tax laws.
• Respondent will pay the Complainant $______in back pay, less normal payroll deductions, and to pay the Complainant a lump sum of $_____. Respondent shall issue a W-2 statement to Complainant with regard to the back pay and will also issue to Complainant an IRS Form 1099 with regard to the lump sum. Regarding the back pay, the final net amount being provided to Complainant is $_______. Respondent shall submit appropriate documentation to the Social Security Administration allocating back pay to the appropriate periods [OR, such as in FRSA cases, if applicable, to the Railroad Retirement Board allocating back pay to the appropriate periods]. Regarding the lump sum, Complainant and Respondent agree to comply with applicable tax laws.

Payment of Monies: [Note: This section would be omitted if there is no payment of monies in the Agreement. Choose one of the bullets below (the first options is preferred), delete the other bullet and start the paragraph after the bolded term "Payment of Monies"]:

• Respondent will provide payment directly to Complainant via [method of payment] and [Complainant/Respondent] will thereafter provide confirmation of payment (e.g., a deposit slip or copy of a check) to OSHA.
• Respondent will mail a check made payable to the Complainant to OSHA at [give address] after which OSHA will mail or otherwise deliver the check to Complainant.

Personnel Record. Respondent will expunge from all of Respondent's records, including but not limited to Complainant's personnel records, all references relating to the protected activity and [insert adverse action]. Should any third parties, including prospective employers, inquire as to the employment of Complainant with the Respondent, Respondent will provide at least a neutral reference and will refrain from any mention of Complainant's protected activity and [insert adverse action]. Neither Respondent nor anyone on its behalf will say or convey to any third party anything that could be construed as damaging the name, character, or employment of Complainant. [If applicable: Respondent's description of any discharge shall only state that Complainant's employment ended on [insert date]].

Enforcement of Settlement Agreement. [Note: Choose one of two bulleted options, delete the other bullet, and start the paragraph right after the bolded words "Enforcement of Settlement Agreement"]:

• [For all cases other than Section 11(c) of the OSH Act, AHERA, or ISCA] This Agreement constitutes findings and an order under the Statute and Citation. Complainant's and Respondent's signatures below constitute assent and the failure to object to the findings and the order under the Statute and Citation. Therefore, this Agreement is a final order of the Secretary of Labor, enforceable in an appropriate United States district court under the Statute and Citation.
• [For Section 11(c) of the OSH Act, AHERA, and ISCA cases] Respondent's violation of any terms of this Agreement may prompt further investigation and the filing of an action by the Secretary in an appropriate United States district court under the statute. This Agreement shall be admissible in such an action. Respondent agrees to waive any and all defenses based on the passage of time and agrees that this Agreement constitutes the sole evidence required to prove such waiver. A violation of this Agreement is a breach of contract for which Complainant may seek redress in an appropriate court. [In bilateral settlement agreements add the following: Complainant is a third-party beneficiary of this agreement.]

[OPTIONAL] Performance. Performance by both parties of the terms and provisions of this Agreement will commence immediately after the Agreement is approved.

[OPTIONAL] Notification of Compliance. Respondent agrees within ten (10) days of receiving a fully executed and approved copy of this Agreement, Respondent will notify OSHA in writing of the steps it has taken to comply with the terms and conditions of this Agreement.

[OPTIONAL] Non-Admission. Respondent's signing of this Agreement is not an admission or denial of a violation of any law, standard, or regulation enforced by OSHA.

[OPTIONAL] Future Use of Settlement Agreement. Nothing in this Agreement may be used against either party in any action except for an action for the enforcement of this Agreement's terms and provisions as described above or through other means and except for proceedings and matters arising under the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq.

[OPTIONAL] Confidentiality. [Complainant and Respondent may agree that each of them will keep the settlement agreement confidential and may ask OSHA to regard the agreement as potentially containing confidential business information exempt from disclosure under FOIA. In those circumstances, the agreement should contain a statement such as the following:] Respondent and Complainant have agreed to keep this Agreement confidential. This Agreement is part of OSHA's records in this case and is subject to disclosure under FOIA, unless an exemption applies. The complainant and respondent have requested that OSHA designate this Agreement as containing potentially confidential information and request predisclosure notification of any FOIA request pursuant to 29 C.F.R. § 70.26. Furthermore, nothing herein prevents OSHA, Complainant, or Respondent from disclosing this Agreement as necessary to enforce the Agreement.

Separate Agreement. [Add the following paragraph only if the Respondent and Complainant are also signing a separate agreement.] Respondent and Complainant have signed a separate agreement encompassing matters not within the Occupational Safety and Health Administration's (OSHA's) authority. OSHA's authority over that agreement is limited to the statutes within its authority. Therefore, OSHA approves and incorporates in this Agreement only the terms of the other agreement pertaining to the Statute and Citation. Further, OSHA is not approving or incorporating any terms involving entities defined as "___" in the separate agreement, and it is also not approving any provisions about [insert other applicable issues, e.g. liquidated damages, taxes, etc. and cite relevant provisions].

Disposition of Complaint. Complainant agrees that acceptance of this Agreement constitutes settlement in full of any and all claims against Respondent arising out of Complainant's complaint filed with OSHA on [insert date] and the disposition of the complaint will be recorded as closed.

This Agreement has been obtained and entered into without duress and in the best interests of all parties.