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OSC Strongly Enforces the Prohibition Against Employee Gag Orders that Chill Whistleblowing

Prohibited Personnel Practices
OSC is providing updated information on its enforcement of the anti‐gag order provision in the Whistleblower Protection Enhancement Act .

​​​​​​Federal employees maintain certain constitutional and statutory “free speech" rights as a result of court decisions and congressional enactments.  The U.S. Office of Special Counsel (OSC) plays a role in protecting these rights, and it is a responsibility that the agency takes very seriously.  

Today, OSC is providing updated information on its enforcement of the anti‐gag order provision in the Whistleblower Protection Enhancement Act (5 U.S.C. § 2302(b)(13)).  Under that provision, agencies may not impose nondisclosure agreements (NDAs) or policies without including language informing employees that their statutory right to blow the whistle supersedes the terms and conditions of the NDA or policy.  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.

Over the last 12 months, OSC has obtained more than 25 corrective actions addressing violations of the anti‐gag provision. Some examples include:

  • The Department of Justice, Executive Office for Immigration Review (EOIR) issued immigration judges a policy on speaking engagements that did not include the anti-gag order language and emailed two judges a message referencing the speaking engagements policy that was perceived as a gag order.  Based on OSC's recommendations, last week EOIR agreed to revise the policy to include the required language, send an email with the revised policy that clarified that the policy does not restrict employees' rights to make protected disclosures or engage in protected activity, and have OSC conduct training.
  • A Defense Commissary Agency official issued a policy requiring all employees to channel “any and 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.
  • The Department of Veterans Affairs (VA) issued an employee a letter of reprimand because of 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. 

“Federal employees have constitutional and statutory rights to make protected whistleblower disclosures," said Special Counsel Hampton Dellinger.  “OSC will continue to aggressively enforce the prohibition against nondisclosure agreements and communications that discourage employees from blowing the whistle. I commend my OSC colleagues for their continued commitment to this issue."

For more information about the anti-gag order provision, an educational video from OSC is available here.