The likely impact of this change to suitability rules will be a higher cost to what was already a costly endeavor. Image: Lightspring/Shutterstock.com
By: Dan Meyer, Esq.It is unclear where President Trump stands on Federal whistleblowers. Senator Charles E. Grassley has invited him, as he has invited every President since Ronald Reagan, to hold a Rose Garden Ceremony in honor of American whistleblowers. The event has never been held; even the Rose Garden is no more. Support for Federal whistleblowing effectively peaked with Secretary Hazel O’Leary’s engagement efforts at the Energy Department in the early 1990s. The division between Washington factions since 1994 has slowly bled support from the post-Watergate reforms, even as the weaponization of whistleblowers by the Legislative and Executive branches accelerated, especially after the Benghazi investigation.
On March 20, 2025 President Trump issued the executive memorandum “Strengthening the Suitability and Fitness of the Federal Workforce.” This action shifted the lion’s share of authority over suitability determinations and actions to the U.S. Office of Personnel Management (OPM). Usually, OPM’s role in suitability determinations ends once a Federal employee’s probationary period does. Even then, suitability determinations are largely the prerogative of employing agencies, not OPM.
This consolidation of authority over suitability determinations and actions is a marked departure from the status quo: one that puts deeper dents in Federal employee protections. Perhaps less obvious among these dents is this: greater risk of reprisal for Federal employees engaging in protected whistleblower activities.
Proposed Changes to Suitability Rules
OPM made its proposed rule changes publicly available June 3, 2025. Among these are additional suitability factors: criteria used in assessing whether an individual is suited to a career in federal service. Suitability is a character assessment, not a technical one. Nor is it a moral one. Ensuring the suitability of the federal workforce is a matter of maintaining the security, efficiency, and integrity of U.S. systems and resources—including its people.
Current suitability factors cover drug use, criminal history, material false statements, alcohol abuse, etc. In addition to making sure employees pay their taxes on time and do not get profligate with government resources, OPM has proposed another suitability factor for the roster.
New Suitability Factors: NDA’s and Other Nondisclosure Obligations
The proposed addition to suitability factors reads:
Refusal to certify compliance with any applicable nondisclosure obligations, consistent with 5 U.S.C.2302(b)(13), and failure to adhere to those compliance obligations in the course of Federal employment.
This is not unlike the move made in many executive directives: that the president’s will is only to be carried out in a manner consistent with applicable law. Here, the ‘applicable law’ is Chapter 23 of Title 5 of the United States Code § 2302 the federal provisions establishing whistleblower protections and obligations.
Federal Employee Whistleblower Obligations
Key to the oversight of government’s integrity is the obligation of Federal employees to report illegality, fraud, waste, abuse of authority, and threats to public health or safety. That is an obligation, not a recommendation. It is a requirement of all Federal employees and contractors. The same code which outlines employee suitability standards also obligates Federal employees to “disclose waste, fraud, abuse, and corruption to appropriate authorities” (§ 4601.108). Simply put: blowing the whistle is a federal job requirement. This is not about Free Speech; it is about informing on those who would corrupt the people’s business.
Since whistleblowing is required, it is also protected. Title 5 forbids Federal personnel and agencies from implementing or enforcing any NDA which does not say as such. Nondisclosure agreements must affirm the supremacy of whistleblower obligations and protections over the NDA in question.
How Protected Are Federal Whistleblowers?
The proposed suitability change directly cites the letter of the law: whistleblowing is a federally protected and mandated activity.
But there is the letter of the law, and then there is the enforcement of the law. If channels to receive and assess whistleblower reports, or enforce provisions protecting whistleblowers from reprisal are diminished—i.e. Inspectors General or the Office of Special Counsel—this caveat is little better than lip service.
Whistleblowing almost always comes with a cost. No Congressional letter, no defense by the media or civil society groups can proactively protect the source. The blunt truth is that you have to blow the whistle, then get hammered, and then bring a complaint in order to be protected. Having blown the whistle, a source in the new Federal order will be exposed to even more potential harassment than they are exposed to now. The likely impact of this change to suitability rules will be a higher cost to what was already a costly endeavor.
A Final Word for the Would-be Whistleblower
Agency-issued NDAs do not supersede Federal employee whistleblower protections or obligations. However, the acceleration of a removal process which further targets employees who violate NDAs makes whistleblowers doubly vulnerable. Firstly, because the suitability standard change opens the possibility of termination—wrongful or otherwise—as retribution for engaging in protecting whistleblowing activities. Secondly, because employees who are thus wrongfully terminated have little recourse to appeal their termination through official channels, like MSPB.
Dan Meyer, Esq. is a Partner at Tully Rinckey PLLC’s Washington, D.C. office and has dedicated more than 25 years of service to the field of Federal Employment and National Security law as both a practicing attorney and federal investigator and senior executive. He is a lead in advocating for service members, Federal civilian employees, and contractors as they fight to retain their credentialing, suitability and security clearances.
Federal employment is subject to laws and regulations that differ significantly from those in the private sector; consulting with a federal employment lawyer can make all the difference. Tully Rinckey’s team of dedicated federal employment attorneys is available to assist you today. Please call (888) 968-1893 to schedule a consultation, or schedule a consultation online.
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