Whistleblower Protections and Non-Disclosure Agreements

The Whistleblower Protection Enhancement Act of 2012 was signed into law on November 27, 2012. The Act strengthens protection for federal employees who report waste, fraud, and abuse in government operations. The WPEA also requires that any non-disclosure policy, form, or agreement (NDA) include the statement below or it may not be enforced. As an employee/former employee/applicant of OMHA, you may have been required to sign an NDA to access classified or other information. You should read the statement below as if it were incorporated into any non-disclosure policy, form, or agreement you have signed.

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

It is a prohibited personnel practice to implement or enforce a non-disclosure policy, form or agreement that lacks the language quoted above, or that prohibits or restricts an employee or applicant for employment from disclosing to Congress, the Special Counsel, the Inspector General of an agency, or any other agency component responsible for internal investigation or review any information that relates to any violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or any other whistleblower protection. 5 U.S.C. § 2302(b)(13).

Employees/former employees/applicants are reminded that reporting evidence of waste, fraud, or abuse involving classified information or classified programs must continue to be made consistent with established rules and procedures designed to protect classified information.

Controlling Executive Orders and statutory provisions are as follows:

• Executive Order No. 13526;
• Section 7211 of Title 5, United States Code (governing disclosures to Congress);
• Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military);
• Section 2302(b)(13) of Title 5, United States Code, as amended by the Whistleblower Protection Act of 1989 (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats), the WPEA of 2012, and section 1138 of the National Defense Authorization Act of 2021;
• Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents);
• The statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code; and
• Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)).