US Office of Special Counsel Warns Federal Agencies About Gag Orders

WASHINGTON — The U.S. Office of Special Counsel sent an advisory this month to federal agencies warning them to be careful about trying to squelch employees’ right to complain about workplace issues.

The advisory follows incidents in which supervisors overstepped their authority to enforce non-disclosure agreements on employees.

The non-disclosure agreements — sometimes called gag orders — are supposed to protect private government information, such as about pending legal matters or national security. Some federal employees are required to sign them as a condition of their employment.

Despite the agreements, “Federal employees maintain certain constitutional and statutory ‘free speech’ rights as a result of court decisions and congressional enactments,” the Office of Special Counsel advisory says. It includes a video explaining employee rights.

The free speech rights are described in the anti‐gag order provision of the Whistleblower Protection Enhancement Act.

The act approved by Congress in 2012 is supposed to strengthen protections for federal employees who disclose evidence of government waste, fraud, or abuse.

“Under that provision, agencies may not impose non-disclosure agreements 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,” the advisory says.

Excluding uniformed military, about 65% of federal government workers are subject to non-disclosure agreements.

Whistleblower allegations in recent years have accused the Trump administration of trying to use the Justice Department to prosecute its critics and the Biden administration of covering up financial misdeeds of presidential son Hunter Biden. 

The whistleblower reports typically are delivered to members of Congress or each agency’s inspector general.

In the past year, the Office of Special Counsel reported 25 incidents in which it felt compelled to override supervisors’ efforts to silence or reprimand employees. Three of them are mentioned in the advisory.

• The Department of Justice, Executive Office for Immigration Review notified immigration judges of a policy on speaking engagements that did not include the anti-gag order language. Two judges with speaking engagements were sent messages they perceived as a gag order.
• A Defense Commissary Agency official issued a policy requiring all employees to channel “any and all” of their workplace concerns through their supervisors. It forbade any contact with upper management without going through the chain of command.
• The Department of Veterans Affairs sent a letter of reprimand to an employee who questioned the agency’s practices. The reprimand did not contain the mandated language about whistleblower rights. It sanctioned the employee for not using official channels for the complaint. The VA rescinded the reprimand at the urging of the Office of Special Counsel. 

The U.S. Office of Special Counsel is an independent agency whose primary mission is safeguarding federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.

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