OSC cited a recent directive - since updated - to immigration judges that they must first clear with management any public statements regarding immigration policy. Image: ptgregus/Shutterstock.com
The Office of Special Counsel has stressed that it enforces restrictions on “gag orders” against federal employees, saying that over the last 12 months, it “has obtained more than 25 corrective actions addressing violations of the anti‐gag provision.”
It noted that the under the Whistleblower Protection Enhancement Act, agencies may not impose nondisclosure agreements or similar policies without including language informing employees that their right to make whistleblowing disclosures overrides such policies. “Among other things, NDAs must inform federal employees of their overriding right to communicate with Congress, Inspectors General, and OSC. No agency can seek, through an NDA or otherwise, to chill such communications,” the OSC said.
It cited for example a recent directive from the Justice Department to immigration judges that they must follow standard policy of first clearing with management any public statements regarding immigration policy. That directive said they no longer had separate rights to speak in their roles as union officials, citing an FLRA decision to decertify the union (a decision that is being challenged).
That directive “was perceived as a gag order” but did not include the anti-gag order language, the OSC said. It said that after it raised that issue, the department has since revised the directive to include the required language and clarify that it does not restrict employees’ rights to make protected disclosures or engage in protected activity.
The OSC also highlighted:
* A directive from a Defense Commissary Agency official requiring all employees to channel all workplace issues through their supervisor and forbidding any contact with upper management without use of the chain of command. “After OSC informed the agency that this policy violated the anti-gag order provision, the agency agreed to withdraw and revise the policy to comply with the law,” it said.
* A VA letter of reprimand to employee citing the way he questioned agency practices. “OSC investigated and found that the reprimand did not contain the mandated language concerning whistleblower rights and improperly sanctioned the employee for not using official channels when he questioned agency practices. The VA agreed to rescind the letter of reprimand,” it said.
Said the OSC: “Federal employees have constitutional and statutory rights to make protected whistleblower disclosures. OSC will continue to aggressively enforce the prohibition against nondisclosure agreements and communications that discourage employees from blowing the whistle.”
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