Bill would let federal whistleblowers sue if disciplined over violating NDAs

A pair of House Democrats introduced legislation last month that seeks to strengthen federal whistleblower protections in the face of the Trump administration’s effort to instill a standard non-disclosure agreement for use across government.

The Federal Worker Protection Act (H.R. 10198), introduced by Reps. Eugene Vindman and Suhas Subramanyam, both D-Va., would require every NDA issued by federal agencies to include a statement of federal employees’ whistleblower protection rights adjacent to each signature line in the document. Agencies would need preclearance from the U.S. Office of Special Counsel before deploying an NDA, and OSC would create a public repository of every NDA in use.

In the biggest departure from existing policy, federal employes removed or disciplined for violating an NDA in connection with a protected disclosure could sue their employing agency directly in federal district court. Currently, a whistleblower must go to their agency’s inspector general or OSC and then the Merit Systems Protection Board before appealing to a federal circuit court.

The Democrats’ legislation comes as the Trump administration weighs a proposal to institute a standardized governmentwide NDA for federal workers to sign, and shortly after the Office of Personnel Management in July finalized regulations granting itself the ability to remove federal workers for violating or refusing to comply with an NDA or other instances of “post-employment conduct” via suitability decisions, which bypass most of federal workers’ appeal rights.

And the National Security Agency’s inspector general reported last month that most of that agency’s NDAs already do not sufficiently inform employees of their whistleblower rights.

Allen Shoikhetbrod, managing partner at federal employment law firm Tully Rinckey PLLC, noted that bill’s proposed private right of action could open agencies up to liability unseen in most administratively channeled federal employment cases.

“It potentially creates an explicit private right to bring action in federal court to seek an injunction, damages, attorney fees and civil penalties for violations,” he said. “A judge could void noncompliant NDAs, or even just void a provision that would make them unenforceable altogether.”

In a statement, Vindman, whose brother Alexander Vindman’s whistleblowing led to President Trump’s first impeachment, warned the proposed NDA would have a chilling effect on the federal workforce.

“Federal workers should never have to choose between doing their jobs and speaking up when they see something wrong,” he said. “Last fall, I hosted a town hall for federal employees, where I heard directly from them about the fear and pressure they were facing. These are people who have dedicated their careers to serving their country and our communities. This legislation makes clear that public servants who speak up will not face politically motivated retaliation.”