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Whistleblower Protections at EPA, and How They Relate to Non-Disclosure Agreements Signed by EPA Employees

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Whistleblower Legislation

When the Whistleblower Protection Enhancement Act of 2012 (WPEA) was signed into law on November 27, 2012, the law bolstered the protections and rights found in the Whistleblower Protection Act of 1989. Among other things, the enhanced Act provides whistleblower protection for government scientists who challenge censorship of scientific information or make whistleblower disclosures related to the integrity of scientific processes. In response to additional requirements of the Act, EPA Office of Inspector General (OIG) has designated a whistleblower protection ombudsman to be responsible for educating employees about whistleblower protections, rights and remedies.

Notice to Current and Former EPA Employees Regarding Non-Disclosure Policies, Forms, or Agreements

Among its provisions, the WPEA requires that any non-disclosure policy, form, or agreement (NDA) include the statement below, and provides that NDAs executed without the language may be enforced as long as agencies give employees notice of the statement.

As an employee/former employee of EPA, you may have been required to sign an NDA to access classified or other information. You should read the statement below as if it were incorporated into any non-disclosure policy, form, or agreement you have signed.

"These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling."

Controlling executive orders and statutory provisions are as follows:

  • Executive Order No. 13526;
  • Section 7211 of Title 5, United States Code (governing disclosures to Congress);
  • Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military);
  • Section 2302(b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act of 1989 (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats);
  • Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents);
  • The statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code; and
  • Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)).

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The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), which became effective in 2003, imposes additional duties upon federal agency employers.  These duties are designed to reinvigorate agencies' longstanding obligation to provide a work environment free of discrimination and retaliation.  Under the Act, federal agencies must:
  • submit annual reports setting forth information about their efforts to improve compliance with the employment discrimination and whistleblower protection laws and detailing the status of complaints brought against the agency under these laws.
  • every fiscal quarter, post on their public websites summary statistical data pertaining to EEO complaints filed with the agency.

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