Federal Manager's Daily Report

The Office of Special Counsel has called attention to a provision in the Whistleblower Protection Enhancement Act of 2012 regarding gag orders, in the wake of controversies over Trump administration actions in several agencies to restrict agency-issued press releases and postings on electronic media.

“Under the anti-gag provision, agencies cannot impose nondisclosure agreements and policies that fail to include required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy,” the OSC said. “Without the WPEA’s required language, federal employees may erroneously believe that a nondisclosure policy, form, or agreement nullifies their whistleblower rights.”

OSC pointed to guidance it issued on that provision in 2013, noting that it has obtained 33 “corrective actions” in favor of employees in that time. “Typically, these corrective actions require agency management to revise their communication to employees to include language explicitly stating that employees have the right to blow the whistle,” it said.

OSC noted that one of the prohibited personnel practices “explicitly shields employees for blowing the whistle on any effort to “distort, misrepresent, suppress” or otherwise censor any government “research, analysis, or technical information” that the employee reasonably believes could, among other things, pose a substantial and significant threat to public health or safety or constitute a violation of law, rule, or regulation.”

“Nondisclosure agreements and policies can chill would-be whistleblowers from coming forward. These orders must clearly state that federal employees have a right to make disclosures of wrongdoing,” said Special Counsel Carolyn Lerner in a statement.